Going through a divorce or separation can be an emotional and stressful time, not just for you but also for your relatives. If you’re a grandparent, then you may be concerned that you won’t get to see your grandchild after your son or daughter gets divorced. So what rights do grandparents have? And can you apply to the court for access to your grandchild if you’re struggling to maintain contact? Keep reading for answers to these questions and more.
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Do grandparents have rights to see their grandchildren?
If a parent is denied contact to their child by another parent, then they can apply to the courts for an order to determine the access arrangements for that child.
However, if you’re a grandparent then you don’t have automatic rights to contact with your grandchild.
If you are being denied access, then you can apply to the court for leave to make an application for contact. Courts recognise that, as a grandparent, you have a valuable role to play in the child’s life and so will consider an application for access.
What should I do if I am being denied contact with my grandchild?
There are many ways in which you may have lost contact with your grandchild. Perhaps the ongoing divorce is not amicable, or you may have fallen out with one or both of the parents of your grandchild.
If you are being denied contact you could:
- Talk to the parents. Explain how much you miss your grandchildren and remind them that they will also be missing you.
- Explain that you don’t want to take sides, and that you just wish to maintain a relationship with your grandchild.
- Suggest ways in which maintaining contact with your grandchild may help the parents. Picking them up from school or babysitting them in the evening may ease the burden on a parent.
- Suggest your grandchild is consulted about the lack of contact (if they are old enough). They may express a desire to have contact with you.
Do I have to go to court if I want contact with my grandchild?
No. If you can speak to the parents and explain that you simply want to maintain a relationship with your grandchild then you may be able to secure an agreement.
If your relationship with one or both parents has broken down then you could try mediation. A trained mediator will give you the forum to air your concerns and help you and the parents to reach an agreement. Mediation can only take place if both parties agree, and there is likely to be a cost for these sessions.
If mediation is unsuccessful, or the relationship between you and the parents is too strained, you may then have to apply to the courts for an order.
How do I apply to the courts for access to my grandchild?
Only people with parental responsibility for a child can make an application to the courts for a Child Arrangements Order (formerly a Contact Order). That means that if you’re a grandparent, you have to apply for permission (called ‘leave’) to apply for a Child Arrangements Order.
The court will take the following into account when deciding whether you should give you leave to apply:
- Your connection with your grandchild
- If there is any risk to the child if the application is successful (the child’s welfare remains paramount)
- The type of application for contact you wish to make.
If you are successful at the court hearing, the court will give you leave to apply for a Child Arrangements Order. In order for such an order to be granted you will have to evidence that you have a meaningful relationship with your grandchild and that they benefit from contact with you.
As part of the court process, it is possible that the court will appoint a Children and Family Court Advisory and Support Service (CAFCASS) officer. This person will look at any child welfare issues that need to be considered and will submit a report to help the court to make a decision.
If this report concludes that you do have a beneficial relationship then this may sway the decision of the parents. However, if there is still no agreement then a court hearing will take place where both sides can give evidence.
The court will make a decision based on the child’s best interests. For example, they may consider whether you having contact with your grandchild might have a negative impact on other family relationships. They will also look at your relationship and you will have to provide evidence that there are good reasons for you to have contact.
What does a Child Arrangements Order mean?
If you are successful at the court hearing and a Child Arrangements Order is made it will set out the level of contact that you will be permitted to have with your grandchild. This may include visits and other contact such as letters or Skype/phone calls.
The contact order will detail when, where and how contact should take place.
If your application for a Child Arrangements Order is unsuccessful, you can consider applying for ‘indirect contact’. If this is agreed, you may be able to write to your grandchild or send birthday and Christmas cards.
What if the parents ignore the court’s decision?
Once the court have issued a Child Arrangements Order it is important that all parties adhere to this. However, in some cases you may still be experiencing difficulties in seeing your grandchild despite a court order being in force.
If the order is not being followed, you do have the right to go back to court to have it legally enforced. In most cases it will depend on the severity of the breach.
Courts are unlikely to take action for small breaches although you should keep detailed notes about these. You are likely to have to evidence to the court that the breach is intentional and substantial, and that the parent has no reasonable excuse for not adhering to the order.
Courts take breaches of contact orders very seriously. They have strong powers to enforce orders which make it very difficult for parents to ignore them. The court can order unpaid work, financial compensation to the other party, a fine, or even imprisonment.
What if my grandchild is fostered or adopted?
Gaining contact with your grandchild can be more difficult if they are fostered or adopted.
If your grandchild is taken into care then the local authority has a duty to encourage contact between the child and their birth parents, assuming this is in the child’s best interests. Sadly, contact with grandparents is not generally seen as a priority, meaning it can be difficult for you to maintain direct contact, unless it is through one of the parents.
Is the law likely to change to allow grandparents to have contact with grandchildren?
In recent years there have been moves to change the law to promote contact between grandparents and their grandchildren.
MPs have called for a change to the law to ensure that grandparents retain contact with their grandchildren after divorce. There has been cross-party support for changes to the Children Act, which would enshrine the rights of grandparents in law.
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