Legal Options for Grandparents Seeking Visitation Rights

When a child’s parents separate arrangements will obviously have to be made for the child to see both of their parents, whether sharing their time between the parents, or by living with one parent and having contact with the other.

But most children do not just spend time with their parents. They will normally also spend time with other extended family members, in particular grandparents. And the separation of the child’s parents may disrupt the time that the child spends with their grandparents.

This can be especially so if the child lives with just one parent, for example the mother. In such a situation the paternal grandparents may find themselves ‘shut out’ of the child’s life, particularly if the father is having little or no contact with them.

But parental separation should not mean the end of a relationship between child and grandparents. After all, grandparents can play a very important role in a young child’s life.

Thankfully, there are steps that grandparents can take to retain contact with their grandchildren after parental separation. In this article we will look at those steps, including the way in which the law can be used to assist grandparents.

Practical steps

We will begin by looking at the practical steps that grandparents can take towards visitation rights, without involving courts.

The first thing is obvious, but may not be easy: discuss the matter with the child’s parents.

There are various scenarios here. The child may live with the parent who is not your child, the child may share its time with both of their parents, or the child may live with your son or daughter.

We will begin with the last of those options. Hopefully you are on good terms with your son or daughter and you can discuss the matter with them. In most cases they will of course be happy for you to see the child and, unless there is any objection by the other parent, that will be the end of the matter. Practicalities of when and where any contact will take place can easily be agreed.

If, on the other hand, you are not on good terms with your son or daughter then obviously things may be different, although you should still attempt to agree matters with them, if possible.

Next is the scenario where the child lives with the parent who is not your child. Again, you should attempt to agree matters with them, if possible. Obviously, there is a possibility that they will not be prepared to speak to you, but it is still worth trying, as agreeing matters can of course save everyone the trouble and stress of having to go to court. You may also be able to see your grandchild when your own child has contact with them.

The third scenario, where the child shares its time with both of their parents, can be slightly trickier, depending upon whether the contact sought impinges upon the time spent by the child with a particular parent. But again, the advice is the same: you should attempt to agree matters with that parent, if possible.

There is of course one other scenario, which we have not yet mentioned: where the child’s parents have not separated, but simply do not agree to grandparents having visitation rights. This can be the most difficult scenario of all, and it may well be impossible to discuss matters with the parents.

In all scenarios, if there is implacable hostility to you having contact with your grandchild then the reason or reasons for that hostility will obviously have to be addressed, whether by direct discussion with the parent(s), through mediation (see below), or within court proceedings.

Mediation

Even if you cannot agree matters directly with the parent(s), you should not necessarily give up and go straight to court. There are other ways to agree contact with your grandchildren, in particular via mediation.

Mediation is a process whereby you attempt to resolve the matter by agreement, with the assistance of a trained mediator.

Mediation is an entirely voluntary process, and can only therefore take place if the parent (or parents) agree. However, they are more likely to agree if they understand that the alternative could be stressful, and possibly expensive, contested court proceedings. In other words, it is in their interests just as much as yours for the matter to be resolved by agreement.

Court proceedings: the law

A grandparent can apply to the Family Court for an order that they have contact with their grandchild in the same way as a parent can apply for a contact order, with one exception: the grandparent will first have to obtain the leave (or permission) of the court to make the application.

In deciding whether or not to grant leave the court will have particular regard to the nature of the proposed application (i.e. what kind of contact the grandparent seeks), the grandparent’s connection with the child, and any risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it.

In practice, it is very rare for a court to refuse grandparents leave to apply for visitation rights with their grandchildren, as the law recognises that grandparents can play an important role in children’s lives. The granting of leave will therefore be a formality in most cases.

Once you have got over the hurdle of obtaining leave, your application will be decided by the court using very similar principles as would be used in an application by a parent.

In short, the court will decide what order to make, if any, by reference to what it considers to be best for the welfare of the child. In doing this, it will take into account a number of factors, including:

1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Accordingly, the older the child is, the more weight the court is likely to give to their wishes.

2. The child’s physical, emotional and educational needs, such as special health needs, or special educational needs.

3. The likely effect on the child of any change in their circumstances – i.e. the change that a contact order would bring.

4. The child’s age, sex, background and any characteristics of his or hers which the court considers relevant.

5. Any harm which the child has suffered or is at risk of suffering as a result of the court making, or not making, a contact order.

6. Lastly, how capable the grandparents are of meeting the child’s needs.

Court proceedings: the procedure

The procedure on applying to the court for contact with a grandchild usually comprises the following steps:

1. Before you make the application you will normally first have to attend a Mediation Information and Assessment Meeting ‘MIAM’. The purpose of a MIAM is to see whether the case is suitable for mediation. If the case is not suitable for mediation, or if mediation takes place but is unsuccessful, then you can proceed with the application.

2. Making the application, and applying for leave. These things are normally done simultaneously, as leave is usually a formality, as mentioned above.

3. The court will fix an initial hearing, called a First Hearing Dispute Resolution Appointment, or ‘FHDRA’. If the case cannot be agreed at this hearing the court will give directions as to what should happen next. In some cases the court will appoint a Children & Families Court Advisory & Support Service (‘CAFCASS’) officer to investigate the case and prepare a report, usually including a recommendation as to what order the court should make.

4. There will then be another hearing, called a Dispute Resolution Appointment. The purpose of this hearing is to see if the case can be settled by agreement.

5. If the case cannot be settled by agreement a final hearing will take place, at which the court will hear the evidence, and decide what order to make.

What will the court order?

As mentioned above, the law recognises that grandparents can play an important role in children’s lives. The court will therefore normally order that the children have regular contact with the grandparents, unless there is a good reason why the grandparents should not be granted visitation rights.

However, the amount and frequency of contact will not usually be the same as between a parent and child. As usual, there are no hard and fast rules – the contact ordered, if any, will vary from one case to another, depending upon what the court considers to be best for the welfare of the child. It may also depend upon whether the child has contact with the grandparents’ own child, and whether the grandparents see the grandchild during that contact.

As a very rough guide, one might for example expect direct contact between grandparent and child to take place, say, once a month, as against something like once a week between parent and child. There might also be indirect contact, for example by telephone, or text messaging, plus of course the exchanging of cards and presents at Christmas and on birthdays.

Conclusion

The above is of course just a brief outline of the law and procedure regarding grandparents visitation rights. If you are unable to agree contact with your grandchild then you should seek expert legal advice. We can provide you with the advice you need and, if necessary, represent you through the court process. To speak to one of our specialist lawyers, complete the form on this page.