This post is presented by J.Donovan Law Group

In May 2017, changes were made to the Family Services Act to specifically reference “a grandparent” in subsection 129 (3.1) which reads: “on application, the Court may Order, on the basis of the best interests of the child, that either parent, grandparent, another member of the child’s immediate family or any other person shall have access to a child…”.  

Prior to this change in May 2017, the previous subsection did not reference “a grandparent”.  Subsection 129 (3.3) reads: “On application by a grandparent or another member of the child’s immediate family, other than a parent or guardian, the court shall take into consideration the willingness of each parent or guardian of the child to facilitate access and the need for making an order for access.”  Subsection 129 (3.4) reads as follows: “An order under subsection (3.1) may provide that access be exercised in the form of visits, oral or written communication or by any other means of communication.”

In any and all cases involving custody of or access to a child in the Province of New Brunswick, the Court’s sole test is what is in the best interests of the child.  “Best interests of the child” consists of a number of factors, some of which are the mental, emotional and physical health of the child and the child’s need for appropriate care, the views and preferences of the child, the love, affection and ties that exist between the child and each person to whom access to the child is granted and, where appropriate…each grandparent of the child.

Both before and after the changes to the Family Services Act in May 2017 to specifically include a reference to “a grandparent” in terms of a person who has the right to apply for access and who may apply for custody of a child, I have had many grandparents ask me about their “rights”.  When a grandparent’s relationship with a child becomes disrupted due to separation or divorce of the parents, they worry that they will not be allowed to see their grandchild.  They wonder if they will have to go to Court to see their grandchild.

I always encourage grandparents to try to settle out of Court and identify the reasons why there may be a disruption to that relationship or the reasons why one parent may no longer wish for the grandparent to see the grandchild.  Once we have explored the reasons, we are in a much better position to determine whether or not going to Court is the appropriate course of action.

For those grandparents who have decided to go to Court, it is their responsibility to show the judge why they should have access to their grandchild; or, more specifically, why it is in the child’s “best interests” to spend time with their grandparents despite the parent’s opposition or refusal.

A grandparent must be cautioned, however, that applying to the Court for access to a grandchild does not guarantee that the grandparent will be in the child’s life or that the relationship that ensues after such a Court order will be good.  

First and foremost, the Court gives a lot of respect to the wishes and concerns of parents.  A judge would listen very carefully to the reasons why that parent does not wish for the grandparent to have access.  Courts do not readily interfere with a parent or guardian’s decisions about a child’s upbringing including who should be in a child’s life outside of the parent or guardian.  Just like in every case involving custody of or access to a child, the grandparent must convince the Court that it is in the grandchild’s best interests to have a relationship with him or her and to be allowed to be in their care without the presence of the parent.

The law allows the judge to order physical access or different kinds of contact such as telephone calls, Facetime or Skype, text messaging or letters or any other method the Court chooses.  I consistently encourage grandparents to be creative in their requests to the Court and to be illustrative in trying to convince the Court that he or she should be allowed to remain a part of the child’s life in a meaningful way.  

For example, as a grandparent, do you have a special hobby or activity that only you do or have done with the child prior to separation or divorce of his or her parents.  To be persuasive, it is important that you paint a clear picture for the Court; bring the judge into your world through examples and stories.

Children benefit when the adults in their lives get along or appear to get along by being civil and respectful to each other.  Grandparents who want to protect their relationships with their grandchildren post separation or divorce must be willing to remain, at all times, respectful and civil with parents.  At all times, it is very important that the adults place their needs second to the child’s needs.  Always put the child first.  Be a role model and make it your mission to help the parents contribute to the child’s upbringing in such a way that you’re helping your grandchild reach his or her fullest potential in life.

I do not discourage grandparents from applying for access, and less commonly, custody, if the evidence will show that they have devoted a great deal of their life to being similar to the parent of the child and the child is bonded with the grandparent.  At the end of the day, the test is what is in the child’s best interests.

Separation or divorce can be hard on a child; if we can keep positive and healthy relationships in the child’s life, we, as a community, should strive to do so.

All for now,

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