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Grandparents’ Rights in a Divorce

06 Apr 2021

A grandparent’s rights to see their grandchildren are not always clear cut following the parents’ divorce. A grandparent can stop seeing the grandchildren for many reasons such as – assuming they are the paternal grandfather – their son has passed away, or due to various reasons is only receiving supervised/supported contact himself, he is in prison, he is estranged from them or is not interested in having any contact with the children.

A relationship or marital breakdown not only impacts the couple but also has an adverse impact on maternal or paternal ties. In this article today we shall be addressing the impact upon grandparents, who often play a vital role in the lives of their grandchildren but get side-lined upon separation.

Reaching an agreement for grandparents

Unfortunately, if your contact is stopped with the grandchildren there is no automatic right to see them and you will need to liaise with the parent with whom the children live. When it comes to matters between a parent and child having contact, the court will start with the view that there ought to be contact unless there is a good reason not to do so. However, there is no such presumption in respect of grandparents. This is not an ideal situation especially if the grandparents have been hands-on with the grandchildren prior to the divorce and have a close attachment to them.

It is possible to try and reach an agreement in the following ways:

  1. Informal discussions with the parent
  2. Mediation
  3. Formal proposal via solicitors

However, if the parent is not accepting any proposals then there may be no option but to make an application to the court. Therefore, a pre-requisite of making an application to the court is attempting mediation, unless you meet the exemption criteria. Therefore, in a situation of a dispute, it is always worth attempting mediation.

What type of application should the grandparent make?

The application will be for a Child Arrangements Order (CAO)

A CAO provides:

  • with whom the child is to live, spend time or otherwise have contact
  • when the child is to live, spend time or otherwise have contact with any person

What right do grandparents have to apply for a CAO?

Grandparents need permission from the court to apply for the application and do not have the automatic right to do so unless they fall into a specific set of criteria. One such criterion is if the grandchild has lived with you for a period of at least 3 years. The 3 years do not need to be continuous, but they cannot have begun more than 5 years before or ended more than 3 months before.

We would be happy to consider the circumstances of your situation and advise if you fall into any of the categories upon which you have the automatic right to apply for a CAO.

What is the application procedure for grandparents?

In most cases, grandparents will require permission from the court to make an application. In determining if permission can be given the court will have regard to the following:

  1. Nature of the proposed application;
  2. Your connection with the child;
  3. Any risk of the proposed application disrupting the child’s life to such an extent that they would be harmed by it; and
  4. What the authority’s plans for the child’s future are, and the wishes and feelings of the child’s parents (if the Local Authority is involved)

If the permission is granted, then you can proceed with the application and the court will list the matter for a hearing and have due regard to the Children Act 1989 checklist of factors.

The court process can involve written statements and the court appointing a Cafcass (Children and Families Court Advisory and Support Service) officer to investigate the matter and to report back to the court with appropriate recommendations. If the children are old enough then their wishes and feelings will also be considered.

Contact a family solicitor to help with your application

Our approach to such matters is always to attempt the amicable route. However, in matters relating to children, delay can be prejudicial to the connection between the child and grandparent and we can advise upon all the necessary steps.

If you are struggling to make progress on matters relating to your grandchildren then I would be happy to assist. You can email Hardeep Dhillon at hardeepdhillon@richardnelsonllp.co.uk or call 0333 888 4040. Alternatively, you can find out more about our family law services on our website.

 

 

Written by Hardeep Dhillon

Hardeep Dhillon is a consultant solicitor for Richard Nelson LLP. With over 10 years of experience, Hardeep specialises in family law with extensive experience in areas such as divorce, judicial separation and domestic violence.

Read more about Hardeep Dhillon.

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