When a family unit breaks down the focus is inevitably in establishing each parents’ rights in relation to their children. What is often forgotten is that such a break up can have negative consequences for the grandparents who may wish to apply for guardianship, access or custody.
We all understand that grandparents play a very important role in the lives of their grandchildren. While they do not have automatic legal rights, they can make court applications to obtain such rights.
What are the main legal rights in respect of children?
Firstly, guardianship is the duty to maintain and properly care for the child. By making decisions about important issues related to the welfare of the child, the guardian exercises this right. Secondly, access is contact with the child and finally, custody is the day to day care of the child.
A grandparent may apply for guardianship, access or custody by application to the District Court. The courts overriding concern is to assess what is in the best interests of the child. Whilst this article deals with applications though the court, mediation is also a viable alternative to court proceedings.
Making an application for Guardianship
Grandparents may apply for guardianship in two instances. If they shared the parental responsibility for the child’s day to day care for a continuous period of two years. Alternatively if they provided for the child’s day to day care for a continuous period of more than twelve months.
This application is on notice to various parties including the child’s parents, who may object to providing their consent to the application. The court can make an order dispensing with the requirement for consent if it is satisfied that consent is being unreasonably withheld. Again, the best interests of the child to make such an order will be considered.
Making an application for Access
An application for access to their grandchild can be made if a grandparent is finding it difficult to maintain contact with the child. Alternatively, it can be made to formalise when they see their grandchild. The court will always consider what is in the best interests of the child by assessing the risk of disruption to the child’s life, the wishes of the child’s guardians and whether or not access is necessary.
Making an application for Custody
An application for custody can be made by a grandparent whether or not the child lives with them. However, the court will not make an order for custody of a child without the consent of the child’s guardians unless it is satisfied that it is in the best interests of the child.
The court can also make an order for joint custody between a parent of the child and a grandparent. The same consideration of the best interests of the child are paramount. In an application for joint custody the court can specify where the child is to live. The court will also make arrangements for access if the child is not living with one of their parents.