Grandparents and Extended Family Members: Difference between revisions

People other than a child's biological parents can also have a legal interest in a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles and so forth — although there's no reason at all why someone else, like an unrelated long-term caregiver or neighbour, couldn't also have an interest in a child. Most often, however, it's grandparents who feel the need to seek a legal role in their grandchildren's lives. For that reason, this discussion is primarily directed to grandparents, although it applies equally to other people who are not the parent of a child.

Their concerns are usually about:

 

#supervising the parenting of the children when they are with a guardian; or,

#being appointed as a guardian of the children.

 

No matter how valid or legitimate a grandparent's or other non-parent's concerns might be, the court will place a great deal of weight on the wishes of the parents. In a 2003 case of the British Columbia Supreme Court, ''M.(D.W.) v. M.(J.S.)'', the court said that while it must give "paramount consideration" to the best interests of the child, "significant deference must be accorded to the custodial parent and that parent's ability to determine the child's best interests."

Two laws might apply to non-parents seeking guardianship of or contact with children. Where the children's guardians are already in court about the children, that will be either the federal ''Divorce Act'', if the guardians are or were married, or the provincial ''Family Law Act''. If the guardians are not involved in a court proceeding between each other, it will be the ''Family Law Act''.

Each law has different rules about how and when non-parents can apply in court, and it's important to understand which law might be applicable.

According to s. 16(1) of the ''Divorce Act'', the court can make an order for ''access'' or ''custody'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.

Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before the grandparents can step in; there must be an existing proceeding in which to bring the application. A grandparent cannot start a court proceeding under the ''Divorce Act'', since the act only applies to disputes between married spouses.

Any person can apply to be appointed as the guardian of a child under s. 51 of the act, however these applications can be difficult and time-consuming and the court must be satisfied that the appointment is in the best interests of the child. People applying to become the guardian of a child, an ''Applicant'', must fill out a special affidavit required by the Provincial Court Family Rules and the Supreme Court Family Rules that talks about:

#the Applicant's relationship to the child;

#the other children presently in the care of the Applicant;

#any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get a new criminal records check and a records check from the Ministry of Children and Family Development (MCFD).

Any person can apply for contact with a child under s. 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.

There is a strong presumption in favour of the natural or adoptive parents of the children. The court will generally be inclined to allow the children to remain with their parent or parents unless a strong case can be shown that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 case of the British Columbia Supreme Court, ''J.R. v. D.W.'':

<blockquote>"Parental claims will not lightly be set aside except in clear cases where the welfare of the child cannot otherwise be achieved."</blockquote>

<blockquote>"The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests."</blockquote>

Nevertheless, grandparents and other non-parents who are seeking custody or guardianship of a child will face a difficult challenge, especially where both guardians are still in the picture, even if they have been actively involved in caring for the children themselves. Since actual, concrete harm must usually be shown before grandparents are awarded custody, it can be critical to gather as much documentary evidence as possible. Some helpful sources include: police records; the records of social workers involved with the children; files from the Ministry for Children and Families; and, a psychologist's report.

Factors that the courts have taken into consideration in awarding custody to a non-parent have included:

#chronic drug or alcohol use, a partying type of lifestyle;

#abandonment of the children by the guardians, or an existing status quo in which the non-parent is primarily responsible for the care of the children; and,

#poor parenting skills on the part of the guardian.

When a non-parent obtains custody of a child or an order that the child live mostly with him or her, that person can apply for child support to be paid by the guardians of the child. The same rules will apply to a non-parent's application for child support as apply to a guardian's application, except that grandparents and other non-parents can only apply for child support under the ''Family Law Act''; they cannot apply under the ''Divorce Act''.

Grandparents are also entitled to ask for financial support from the provincial government to help meet the cost of caring for any grandchildren in their care. The province of British Columbia pays grandparents who are looking after their grandchildren at the same rate as foster parents. It's not a princely sum, but it's better than a kick in the teeth.