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When Grandparents Apply for Legal Rights: Access & Custody

As our society ages, we are living longer and healthier lives. We constantly see increasing applications from grandparents for custodial rights or access applications to have legally defined roles in the lives of their grandchildren. In our two part series we will discuss the legal rights available to grandparents in various situations and circumstances.

No Default Rights for Grandparents

While the legislation in Ontario states that the father and mother of a child are equally entitled to custody, this legislation does not define or outline any rights, responsibilities or limitations of grandparents in custody or access proceedings. However, grandparents can and do apply for access or custody of their grandchildren in family law proceedings.

As there is no specific legislation written to address grandparents, the courts apply the standard from s. 24(2) of the Children’s Law Reform Act (the “CLRA”). The CLRA requires that custody and access decisions be made with the best interests of the child in mind.

The best interests of the child includes considering all of the child’s needs and circumstances including:

  • the love, affection and emotional ties between the child and the person entitled to custody or claiming custody or access, the other members of the child’s family who reside with the child and the persons involved in the child’s care and upbringing;
  • the child’s views and preferences;
  • the history of the child’s residence and care;
  • the ability and willingness of each party to act;
  • the plan proposed;
  • the permanence and stability of the family unit;
  • the ability of each person applying for custody or access to the child to act as a parent; and
  • the nature of the relationship, through blood or adoption between the child and each person who is a party to the application.

When Grandparents are Awarded Access or Custody

Generally, grandparents are awarded access or custody in extenuating circumstances. Often custody to grandparents is considered when both parents are deemed to be unfit to raise the child and have custody or unsupervised access, including in high conflict situations where there is severe parental alienation. Sadly, when one or both of the parents are deceased (e.g., from a joint car accident or plane crash), the grandparents, if named as legal guardians, may have child custody or obtain leave (permission from the court) to adopt their grandchildren.

As stated above, the overwhelming consideration from the court is whether the custody or access is in the best interests of the child or children as defined by the CLRA. Even if the grandparents do not succeed in obtaining custody, grandparents may still petition for access just like any other interested party.

Contact Epstein & Associates, Child Custody Lawyers in Barrie

Come back next week for the continuing discussion of grandparent legal rights in regards to child access and other areas of family law. Let Epstein & Associates help you achieve what you believe is in the best interests of your grandchild. Contact our Barrie family lawyers to schedule your consultation at 705-720-2210.