Grandparents do not normally have visitation or custody rights in relation to their grandchildren. Both the Children’s Law Reform Act and the Divorce Act only give custody and access rights to the mother and the father of the child. However, any individual, who affects the best interests of the child can apply to the court for an order for custody of or access to a child.
This means that grandparents can apply to the court and try to show that it is in the best interests of the child for them to have custody or access rights. In determining the best interests of a child, courts will consider all circumstances including the love, affection, and emotional ties between the child and the grandparents, views and preferences of the child, ability and willingness of the grandparents to provide the child with guidance and education, and the relationship by blood or through an adoption order between the child and the grandparents.
In general, the court is reluctant to remove the child from his or her parents, or to go against decisions about the child’s best interests made by the parents. Grandparents will only be successful in a claim for custody or access under extraordinary conditions. For example, grandparents may be rewarded custody in cases where both parents are considered ‘unfit’ to raise the child.