In a divorce, nobody really comes out of the process a ‘winner’. Hostilities between battling former spouses can sour relationships not just between them, but throughout the wider family group too. Courts do their very best to protect the interests and the wellbeing of the most vulnerable members of the family, the children.
But what about the older relatives? In a divorce situation, what rights do grandparents have, and how should they deal with what is always a very painful and emotional situation?
The forgotten victims
Grandparents can often be the forgotten victims of a marriage breakdown. Unfortunately, there is no legislation in place that gives grandparents any automatic rights of access before, during or after a divorce. There was an attempt to introduce a Private Members Bill in parliament called the Grandparents (Access Rights) Bill 2010-12, but it failed to complete its passage through parliament and therefore never became law.
Initially, the only option that grandparents really have is mediation. Contact should be made with the children’s custodian to initiate the process. But be aware that this first contact can be difficult, as emotions are still bound to be a little raw. The most important thing is to emphasise that as grandparents, you have no intention of ‘taking sides’, but merely want to continue to see the grandchildren and maintain contact with them.
If this doesn’t work then the next step is to talk to a mediator. A neutral mediator can help get both parties engaged in positive dialogue, while ensuring that the needs of the children are kept at the very centre of any discussions. They may ask grandparents to give assurances that they will not try to influence the children’s opinion of the conflicting parties, and work out mutually agreed schedules so that the grandparents maintain contact with their grandchildren.
Family courts recognise the importance of grandparents in the family dynamic, and sometimes contact can be agreed in court, rather than by a mediator. This usually involves the appointment of a Children and Family Court Advisory and Support Service (CAFCASS) officer, who will act as the point of contact for the family. They will also look at any issues that need to be addressed, and help the court come to a decision regarding access.
Court orders can be applied for by grandparents if mediation has broken down, and again it will be a CAFCASS officer who works with you to look at welfare issues and to prepare reports for the court. It will, however, require the services of a legal representative.
However, despite the fact that grandparents have no legal rights to access, courts are now far more aware of the important role grandparents play in children’s lives. So they are more likely to set guidelines for access, regardless of the situation between the divorcing parents.
It is important to remember that grandparents do require the courts’ permission (also referred to as ‘leave’) to make an application for a court order granting them access. The closer the relationship between the grandparents and the children, the more likely the court is to grant access rights, and in some extreme cases, even make grandparents the legal guardians of children. This is rare, but it does happen, especially when the welfare of the children may be compromised if they stay with either of the parents.
What if one or both parents object?
Parents have the right to object to grandparents having access to their grandchildren, especially if there are grounds to believe that a child’s wellbeing may be compromised. The court will also look at whether contact would have a negative effect on the other family dynamics, especially during such a traumatic time as during a divorce. At all times, the wellbeing of the child must be the number one priority, regardless of the feelings of the adults.
Today, grandparents have a much greater chance of being allowed access to children during or after a divorce. The influence of grandparents has been recognised as crucial to the development of the child, and unless there are exceptional circumstances, courts will often side with the grandparents in access disputes. It is, however, essential to have good legal representation, with a solicitor that specialises in family law.
This is not legal advice; it is intended to provide information of general interest about current legal issues.