Grandparents can have rights with respect to the issues of custody and access of their grandchild. (For that matter, under the Ontario Children’s Law Reform Act, any person—not just mom or dad—can apply to a court for an order respecting custody of or access to a child.)
More and more frequently, grandparents are bringing court applications seeking access to, or even custody of, a grandchild. A common scenario: the grandparents and the parents have a dispute, and as a consequence, the parents restrict their parents’ access to the grandchild. If you are a grandparent who feels it has become necessary to bring a court proceeding in an attempt to see your grandchild, keep in mind the following general principles:
- At the end of the day, the court’s decision will be based on whether or not grandparent access would be in the child’s best interests. The issue is not about the needs or the wishes of the grandparent, or the needs or the wishes of the parent for that matter. It all comes down to what is best for the child in question.
- Parent’s rights usurp grandparent rights. A duty to create a grandparent-grandchild relationship lies with the child’s parents. The failure to do so does not warrant judicial intervention, especially in circumstances where the immediate family is functioning well and the child’s best interests are being assiduously nurtured by dedicated parents.
- When determining whether it is in the child’s best interests to have access to the grandparents, the courts will look at what type of relationship historically existed between the grandparents and the grandchild. Generally speaking, the more time spent between grandparent and grandchild, and as a corollary, the closer the ties between them, the more likely the Court is to order access.
- In the case of real conflict and hostility between parents and grandparents, the Court will rarely find that the child’s best interests are served by granting access to the grandparents.
In short, a grandparent seeking access (or custody) through the judicial system has a bit of an uphill battle; which is not to say that the battle cannot be won. If the Court determines that a positive, meaningful relationship has existed between a grandparent and a child and that the parent in restricting access, is acting arbitrarily, without justification, perhaps even vindictively, a Court may well intervene to reestablish the relationship between child and grandparent.