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Do grandparents have legal rights to their grandchildren?

Separation or divorce can cause widespread collateral damage, but often overlooked is the impact it can have on the grandparents of the children involved.

Depending on which parent gets custody, the other parent’s folks could find their access to their grandchildren significantly curtailed. Grandparents have no automatic rights to see their grandchildren as it’s at the discretion of the parents.

There are, however, some extenuating circumstances that could lead to the grandparents being granted either temporary or permanent custody of a grandchild.

In cases where both parents are deemed unfit to raise their child, the grandparents may be awarded legal custody. In the event that the child’s parents die and the grandparents have been appointed their legal guardians, they could apply for permission, or “leave,” to adopt their grandchild.

A will naming the grandparents as guardians helps, but does not automatically confer custody of the grandchildren in the event both parents are deceased. It will, however, be a determining factor for the judge.

The overriding guideline for the courts is what is in the best interests of the child, which in the case of small children is usually to keep them with their mother. Generally the courts will consider the express wishes of children 12 or older to live with one parent or the other, or even to live with their grandparents or other legal guardian.

Quebec is the only province that has legally enshrined the visitation rights of grandparents. Civil law in the province says children must be allowed to see their grandparents, unless there is a serious reason to deny access. Failing that, grandparents may file a request for visitation with the Superior Court of Quebec.

A “serious reason” could be any of these:

  • The child’s parents and grandparents are locked in a legal battle.
  • The grandparents are deemed a bad influence on their grandchildren.
  • The grandparents are continually interfering with the parent’s authority.

Grandparent access rights are addressed in most provinces and territories including Alberta, British Columbia, Saskatchewan, Manitoba, Nova Scotia, New Brunswick and the Yukon. In most cases, courts are more inclined to grant access if the grandparents are the only link to that side of the family, especially in cases where a parent has died.

Further reading:

Legal Information Society of Nova Scotia: http://www.legalinfo.org/family-law/grandparents-rights.html#1

Éducaloi Quebec: http://www.educaloi.qc.ca/en/capsules/children-have-right-relationship-grandparents