Grandparents hold a significant place in their grandchildren’s lives as they tend to be more emotionally attached to them. In some circumstances, grandparents can file for custody of grandchildren to ensure the child’s well-being. Courts can grant custody to grandparents when it’s in the child’s best interest, though parental rights are fundamentally protected.
This article will help you to know if grandparents are eligible to file for custody of a grandchild, highlighting the legal grounds and concerns involved.
Understanding Custody and Guardianship
There is a clear distinction between custody and guardianship of a child, and understanding that is very crucial for a child’s care.
Custody refers to the legal rights and responsibilities of parents for a child. There is legal custody where the authority can make choices and decisions regarding a child’s education, healthcare, and religious upbringing. On the other hand, physical custody decides where the child resides and who is responsible for everyday care.
Guardianship refers to the court-appointed decision regarding the legal authority to care for the child. When the parents of a child are unable or unfit to fulfill their parental duties due to death, incapacity, or incarceration, the role of a guardianship is assigned.
Legal Grounds for Grandparents Seeking Custody
A grandparent can file for custody of grandchildren only under the circumstances below-
Parental Unfitness
If a parent is deemed unfit under the circumstances, like abuse, substance abuse, or neglect, grandparents can petition for custody. Courts may consider grandparents as suitable guardians, prioritizing the child’s safety.
Parental Death or Incapacity
Grandparents may step in to provide stability if there is an unfortunate situation where one or both parents have passed away or are incapacitated. Courts often view grandparents as preferable custodians to keep the child’s life continuity.
Voluntary Relinquishment by Parents
Sometimes, parents willingly relinquish their parental rights. In that case, grandparents seek custody of their grandchildren. Often, due to circumstances such as financial hardship, mental health issues, or an inability to provide adequate care, parents make this decision.
De Facto Custodian Status
The “de facto custodian” is a legal term used in family law. When a non-parent becomes a child’s primary caregiver and financial supporter for a significant period, the person has the “de facto custodian” status. Depending on the jurisdiction, the individual can seek custody or visitation rights with “de facto custodian” status.
Reasons Grandparents Can File for Custody of a Grandchild
The most common reasons for filing for custody are-
Protecting the Child
Grandparents can seek custody to protect them from harm or neglect. Grandparents can petition for custody if parents are unfit due to issues like substance abuse, neglect, or abuse. In that case, the court will require evidence to support claims of unfitness.
Stable and Nurturing Environment
When the child’s current living situation is unsafe or unstable, grandparents often seek custody of their grandchildren to provide a stable and nurturing environment. If grandparents can asses the child with safe living conditions, emotional support, financial stability, educational support, they can seek custody and court may grant custody.
Emotional Bond with the Child
Grandparents can ask for custody of their grandchildren based on a strong emotional bond. A strong emotional bond alone may not be sufficient for custody, so the courts primarily focus on the child’s best interests, parental rights, and other compelling factors to influence custody decisions.
Parents’ Consent
The parents’ consent is legally permissible and can be more straightforward than contested custody cases for grandparents seeking custody. Sometimes, parents voluntarily transfer custody to grandparents for various reasons, like health issues, financial hardship, military deployment, or incarceration, educational or behavioral needs, etc.
Child’s Long-Term Best Interests
When a child’s long-term best interests align with grandparents, they can seek custody of the child. In this case, the court prioritizes various factors to determine the most beneficial living arrangement. These factors are emotional and physical needs, stability and continuity, parental fitness, the child’s wishes, existing relationship between the grandparent and grandchild.
How to File for Custody of Grandchildren as a Grandparent in Canada?
As a grandparent, you need to go through the process below to seek custody of your grandchildren-
Legal Framework
The legal framework is the primary process of seeking custody. The Divorce Act says that, as a non-parent, grandparents can apply for decision-making responsibility or parenting time. But to proceed with such an application, they must first obtain the court’s permission.
Moreover, each province has legislation in Canada to apply for custody or access. So, you have to follow that as well.
Best Interests of the Child
The courts prioritize the child’s best interests as paramount when grandparents seek custody. Courts consider various aspects to determine what arrangement fits the child’s best interests.
These include the Child’s Needs, the child’s relationship with parents, siblings, grandparents, and other significant individuals, the child’s care history, the child’s views, depending on their age and maturity, the child’s cultural, linguistic, religious, and spiritual upbringing, any history of family violence and its impact on the child’s well-being. In these cases, grandparents can petition the court, explaining that their involvement is in the child’s best interests.
Steps to Apply for Custody
First, understand your rights and the specific procedures in your province. You can seek legal advice from a family law lawyer to gain clear knowledge. Seek the court’s permission before filing for custody if your province requires it.
Submit the necessary forms and documents, including affidavits detailing your relationship with the child, reasons for seeking custody, and how your involvement serves their best interests.
Be ready to present evidence supporting your application, and demonstrate that granting you custody aligns with the child’s best interests.
Provincial Differences
In Canada, seeking custody of grandchildren requires navigating varying provincial laws and procedures. But all the provinces highlight the child’s best interests for granting custody.
In Ontario, grandparents can apply for custody or access without the court’s permission. The bill 34 (2016) amended Section 21(1) of the CLRA, acknowledging grandparents’ rights to apply for custody or access.
The province of British Columbia focuses on the significance of the grandparent-grandchild relationship, including the child’s best interests.
In Alberta, grandparents need to obtain the court’s permission before applying for contact unless the child’s parents are divorced or one parent is deceased.
In Nova Scotia, grandparents can apply for contact or interaction orders without prior court permission. Still, grandparents must seek the court’s leave before applying if the matter falls under the federal Divorce Act.
Conclusion
Grandparents seeking custody of their grandchildren, now called “decision-making responsibility” in Canada. Common reasons include parental unfitness, death, or incapacitation of parents, making the situation where a grandparent may ask the custody of the grandchild.
The courts prioritize the child’s safety, stability, well-being, and best interests as the paramount consideration.
Recent Posts
About Post Author
