Grandparents | Access to Grandchildren

Do you have grandchildren that you want to see more often? Are you worried that your son or daughter’s divorce or separation will affect your relationship with your grandkids? If so, you may be wondering what legal rights you have as a grandparent in New Brunswick.

In this blog post, we will explain the current laws and procedures that apply to grandparents who seek access to their grandchildren in New Brunswick. We will also provide some tips and resources to help you navigate this complex and emotional issue. Laws differ across jurisdictions. Accordingly, if you have questions about access to grandchildren outside of New Brunswick it is best to seek legal advice in the jurisdiction in which the child or children reside.

What is access?

This is the legal term for the right to visit and spend time with a child. It also includes the right to ask for information about the child’s health, education and welfare.

This is different from the issue of custody of children, which is the legal right and responsibility to make major decisions about a child’s upbringing. Custody is usually granted to one or both of the child’s parents, unless there are exceptional circumstances.

Who can apply?

This means that grandparents have the legal right to ask a court for an order providing for access to their grandchildren but, you may be surprised to know that, under New Brunswick law, grandparents do not have an automatic right to access. The court will decide the issue of access, on specified terms, based on what that judge sees as being in the best interests of the child or children.

How does the court decide what is in the best interests of the child?

The following is a list of factors that the court must consider when deciding what is in the best interests of the child. Some of these factors are:

• The love, affection and emotional ties between the child and each person seeking access
• The views and preferences of the child, if they can be reasonably ascertained
• The length of time that the child has lived in a stable home environment
• The ability and willingness of each person seeking access to provide guidance, education, necessities and special needs of the child
• The relationship by blood or through an adoption order between the child and each person seeking access
• Any history of violence or abuse by any person seeking access
• Any other relevant circumstance

The court will look at all these factors and weigh them according to the specific facts of each case. The court will also consider any existing access arrangements or agreements between the parties.

What are some tips for grandparents who want to apply for access?

Here are some tips that may help you:

• Try to resolve the issue out of court if possible. Going to court can be costly, time-consuming and stressful for everyone involved, especially for children. You may want to try negotiation, mediation or other alternative dispute resolution methods first. These methods can help you reach a voluntary agreement with the parents that meets your needs and respects their wishes.
• In my own practice, I stress to clients the importance of resolving issues through discussion. Court action should be seen as an absolute last resort. Beyond questions of expense, stress and delay, the results that are achieved through negotiation are, in my view, preferred since the resolution is one that has been arrived at by the parties themselves and, accordingly, is likely more appropriate and workable. In court, the result is an order, including specified terms, imposed by a judge who may not have values and beliefs that are perfectly congruent with what is in the best interests of a child or children. In that sense, a court order may not align perfectly with the extended family’s set of circumstances. The family should be the decision-maker on these issues. However, in cases where the child’s own parents have deliberately curtailed it or are otherwise estranged, court may be the only alternative.
• Seek legal advice before you apply. Applying for access can be a complicated and challenging process. You may want to consult a lawyer who specializes in family law before you start. A lawyer can help you understand your rights and obligations, prepare your application and represent you in court if necessary. In addition, a family law lawyer may be familiar with skilled mediators who can help parties resolve the issues when the parties, on their own, cannot. Finally, advice from seasoned legal counsel can help you navigate the issues when intense emotion may rob you of the judgement that is required during such a stressful time.
• Gather evidence to support your case. You will need to show the court why granting you access is in the best interests of your grandchildren. You may want to collect documents, photos, letters, emails or other evidence that demonstrate your relationship with your grandkids, your involvement in their lives and your positive impact on their well-being.
• Be respectful and cooperative with the parents. The court will consider how well you get along with the parents and how willing you are to respect their role as custodians. You may want to avoid criticizing or blaming them for any problems or conflicts. You may also want to show that you are flexible and open to compromise on issues such as scheduling, communication and transportation. These are emotional issues. However, the descent into conflict is in no one’s best interests and tends to jeopardize, perhaps permanently, the relationships that need to maintained in the best interests of the children.
• Focus on your grandchildren’s needs and wishes. The court will ultimately decide what is best for your grandchildren, not what is best for you or the parents. You may want to put yourself in their shoes and think about what they want and need from you as a grandparent. You may also want to listen to their opinions and preferences if they are old enough to express them. If the child or children are old enough to express those views, the Office of the Children’s lawyer is often appointed to investigate and report to the court on their findings.

Where can I find more information and resources?

If you want to learn more about grandparents’ rights, here is a useful link from the Public Legal Education and Information Service of New Brunswick:

Grandparents Rights | Access to Grandchildren

I hope you have found this information helpful. If you have questions or comments please leave any remarks you may wish to offer in the ‘Leave a Reply’ section below.

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Grant Rayner*

If you are separating from your spouse in the Upper St. John River Valley of New Brunswick, call Langdon Law at 506.497.2560 for a consultation with Grant. Offices in Woodstock, Hartland and Florenceville-Bristol to serve you.

*Grant is a member of the Law Society of Ontario. He has permission from the Law Society of New Brunswick to practice as a visiting lawyer with the firm Langdon Law pending the transfer of his membership with the Law Society in Ontario to the Law Society of New Brunswick.