Grandparent Rights? Another layer in the complex area of family law – Redmond Powell

The typical Irish family has changed significantly since the birth of today’s grandparents. The commonplace larger families have reduced in size and many modern families rely on grandparents for much more than just weekend visits. However, a substantial amount of modern grandparents have very different experiences of family life especially when things go wrong. Modern families equally throw up issues that can lead to the fracturing of the relationships between the three generations of the family.

The issues
Divorce, separation and death are some of the more common causes of families drifting apart and for others it may be as simple as “words” that were said out of tone or in anger. The end result is that grandparents can be prevented from playing a part of their grandchildren’s lives. Being denied access to grandchildren can at a minimum be frustrating and for most, heart-breaking. Depending on the issue the legal options available to grandparents are as follows:
a) Apply for an access only order, or
b) Apply for custody and guardianship

When grandparents are considering an access application to the court it must be acknowledged that to do so can lead to a further fracturing of the grandparent/parent relationship. Emotions can run very high at the mention of litigation and in reality legal proceedings should be the last attempt to gain access to grandchildren, but unfortunately, in some cases it is necessary. One of the first drawbacks to family court is the adversarial nature of the Irish court system. This approach does not auger well for the family as in effect it pitches one side against the other. It is vitally important to keep focused on the primary objective which is the reinstatement or the protection of the relationship between grandparents and grandchildren.

The recent changes to the Guardian of Infants Act 1964 brought about by the introduction of the Children and Family Relationships Act 2015 have given more opportunities for grandparents to seek the courts direction in matters concerning the grandchildren’s welfare. Section 11(b) now affords grandparents and certain other qualifying people rights to apply for access to children.
This application can include establishing the right of access to the child but can be contested by the parent with custody of the child. The child, to the extent possible given his or her age and understanding, will have the opportunity to make his or her views on the matter known to the court.
Guardianship and custody.

Grandparents can be asked, or can offer, to take much greater responsibility in the lives of their grandchildren because of the difficulties that exist in the lives of their own children. However caused, grandparents taking on this type of caring role may not realise the heavy burden of responsibility that is placed upon them. Engaging with social workers and other professionals may become the norm. Grandchildren’s difficult behaviour, the disruption to regular routines and the possibility of resentment from other children and grandchildren may all become commonplace. In the past this type of commitment by grandparents did not bestow them with any guardianship rights, just lots of responsibilities.
However, as well as the changes to access arrangements the amended Guardian of Infants Act 1964 mean that grandparents can apply to

a) Become guardians of their grandchildren if they have been responsible for the child’s day-to-day care for over a year and if no parent or guardian is willing to assume the responsibilities of guardianship.

b) Become temporary guardian for his / her grandchild if the parent is suffering from serious illness or injury which would prevent him or her from exercising his or her guardianship responsibilities.

Court appointed guardians have the right and responsibility to decide where and with whom the child lives, as well as the right to consent to medical, dental and other health related treatment for the child. The child, to the extent possible given his or her age and understanding, will have the opportunity to make his or her views on the matter known to the court.

Relationships with parents
Parents are crucial in grandparent- grandchild relationship as they can act as a gatekeeper by restricting the access to the child because of their issues with their parents (the grandparents). In a post separation situation a parent may decide that the grandparents on the “other” side should not have access to their grandchild. Given that statistically the mother is more likely to gain custody of the children can typically mean that paternal grandparents are the ones who lose out. Limiting access may be the parent’s way of attempting to break free from the entire ex-family and perhpas reduce conflict with any new partner.

Mutual friends or family members could be used as an intermediary with the parent or The Family Mediation Service (FMS) or the Mediators Institute of Ireland could provide a more professional approach to resolving the issue.

Maintaining a relationship with a grandchild.
Whilst the parent-child relations can sometimes be complicated and fraught with difficulties the grandparent-child relationship can occupy a different space, regarded by Andrea Smiths as “a free and easy relationship that is lacking in complications because the parental layer of responsibility is removed from the equation.” Family law processes can be quite time consuming. Whilst the process is ongoing it might be useful to maintain some level of contact, if permissible. Writing letters or cards especially at Christmas, birthdays and other important days may help in the healing process. Keep positive and never blame the other side. Writing letters also acts as evidence of your attempts to heal the rift and may be very useful information for the Judge in his deliberations.

Finally, keep in mind that winning in court can be an empty victory as additional complications may arise if the parent is adamant that the grandparent is persona non grata and return dates to court may become commonplace as enforcement orders are considered as an option. A period of reflection may be necessary as this process will undoubtedly have an effect on the child with the end result being that the grandparents needing to wait until the child can make decisions for him/herself.

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