Grandparents’ Rights – I want contact with my grandchildren (Part 1)

I want contact with my grandchildren (Part 1)

Top 10 questions about contact with grandchildren when there has been a separation, divorce, death, and/or remarriage

 

My son and daughter-in-law have separated and are divorcing. My son barely sees the children and my daughter-in-law hardly ever lets us see them anymore either. What can we as grandparents do?

If at all possible, try to rebuild the relationship without resorting to legal processes (see How can I avoid going to court below). But if necessary, one or more grandparents can bring a court application for access rights to their grandchildren (called a “contact order”).

Under the Family Law Act, you can apply for a contact order if:

  • the parents are the guardians of the child(ren);
  • the guardians are living separate and apart or one of the guardians has died; and
  • the grandparents contact with the child(ren) has been interrupted by this separation or death.

In the above situations, you do not need “leave” of the court to make an application for a contact order.

Naturally, the amount of time that can be given to grandparents will also depend on the kinds of Orders already in place. For example: if the father has only every second weekend with the children, it may affect what, if any weekends, the grandparents can get.

Note: The situation is different when your grandchild still lives in an intact nuclear family unit, that is, where the parents still live together. Please see I want contact with my grandchildren (part 2).

The amount of time that can be given to grandparents will also depend on the kinds of Orders already in place.

My daughter died a few years ago, and now my son-in-law is getting remarried and he and his new wife rarely ever lets us see the children. What can we as grandparents do?

If at all possible, try to rebuild the relationship without resorting to legal processes. But if necessary, one or more grandparents can bring a court application for access rights to their grandchildren (called a “contact order”). See How can I avoid going to court below.

Under the Family Law Act, you can apply for a contact order if:

  • the parents are the guardians of the child(ren);
  • the guardians are living separate and apart or one of the guardians has died; and
  • the grandparents contact with the child(ren) has been interrupted by this separation or death.

In the above situations, you do not need leave of the court to make an application for a contact order.

Note: The situation is different when your grandchild still lives in an intact nuclear family unit, that is, where the parents still live together. Please see I want contact with my grandchildren (part 2).

I have never met my grandchildren. My daughter and her ex-husband have never let me see them, even when they were still together. Can I still apply for a contact order?

As mentioned in questions 2.1 and 2.2, the conditions for applying for a contact order under the Family Law Act are that:

  • the parents are the guardians of the children,
  • the guardians are living separate and apart or one of the guardians has died, and
  • the grandparent’s contact with the children has been interrupted by the separation or death.

This situation is slightly more challenging, as there was no contact that was “interrupted.” However, if it can be shown that contact would be in the best interests of the child, one or more grandparent may still be able to obtain a contact order.

Note: this is different from a situation in which your grandchild still lives in an intact nuclear family unit (i.e.: where the parents still live together). For this kind of situation, please see I want contact with my grandchildren (part 2).

Do I need a lawyer to make this application for a contact order?

Not necessarily. You can try to represent yourself. For a list of resources to help in this regard, please see the “Where can I get more help” Section.

While it is possible to represent yourself, it is often much better to have a lawyer represent you. If you don’t know a lawyer, call the Alberta Lawyer Referral Service at 1-800-661-1095. If you qualify, you may be able to get a lawyer paid for by Legal Aid. For details, see the Resources Section of this booklet.

If I do have to go to court to obtain a contact order to see my grandchildren, what do I need to prove?

To be granted a contact order, a grandparent must show that:

  • contact between the child and the grandparent is in the best interests of the child;
  • the child’s physical, psychological or emotional health may be jeopardized if contact between the child and the grandparent is denied; and
  • the guardian’s denial of contact between the child and the grandparent is unreasonable.

There is no assumption is that children have a right to a relationship with their grandparent – the judge must be satisfied that such a relationship is in the “best interests” of the child.

The examination of a child’s “best interests” includes factors such as:

  • the history of care of the child;
  • the child’s views and preferences;
  • the benefit to the child in developing a relationship with the applicant;
  • the nature and strength of existing relationships;
  • any history of family violence; and
  • any civil or criminal proceedings that may be relevant to the child’s safety or well being.

To be granted a contact order, a grandparent must show that contact between the child and grandparents is in the best interests of the child.

What kind of provisions can a court put in a contact order?

A contact order can provide for contact between the child and the applicant in the form of visits, oral or written communication, or any other method of communication.

The court may also add related provisions as deemed appropriate. An example of such of a provision would be permission for the child to travel out-of-country with the grandparents to visit extended family (if that were appropriate in the circumstances).

How long will the contact order be in place?

A contact order may be for a definite or indefinite period or until a specified event occurs. In addition, the court may impose terms, conditions and restrictions in connection with the order, as deemed appropriate.

A contact order can provide for contact between the child and the applicant in the form of visits, oral or written communication, or any other method of communication.

Once I have a contact order, must my grandchild’s guardian allow me access to my grandchild?

Yes.

A contact order is like any other court order. It should be obeyed.

What can I do if my grandchild’s guardian still does not allow me access to my grandchild?

For the sake of the long-term relationship, if at all possible, you may wish to consider addressing the situation without making use of law enforcement and without a court battle. However, if this is not possible you can apply to the court for help in enforcing your contact order. This is known as an “enforcement order.” Once you have such an order, the police can help you enforce the order to obtain the contact with your grandchildren.

If you have a lawyer, seek his or her advice as soon as possible.

Can I later change the contact order if I need to?

Yes, you can apply to the court to vary, suspend, or terminate a contact order, or any part of it. The application must be made either by the person who applied for the order in the first place or a guardian of the child.

The court will not change the arrangement without careful consideration. Before the court varies a contact order, it must be satisfied that there has been a change in the needs or circumstances of the child. In making a variation order, the court shall consider only the best interests of the child.

You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. June 2010.
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