Grandpa and Grandma: Becoming Parents All Over Again
We have successfully represented BC grandparents in obtaining them custody guardianship, access and visitation rights.
Under section 35 of the Family Relations Act, any person or persons may be granted custody of or access to a child . The reference to persons in this section includes parents, grandparents, other relatives of the child, and persons who are not relatives of the child. On first glance, this section seems to give the courts wide ranging discretion to award custody of a child to whomever the court sees fit but this is not necessarily the case. The courts have articulated a common sense approach for custody disputes which holds that, all other matters being equal, a parent is entitled to raise their child.
In L. (A.) v. K. (D.), 2000 BCCA 455 , the British Columbia Court of Appeal reviewed the law in the area of third party claims to custody (meaning parties who are not the parents of the child in question) and found that parents are entitled to raise their children unless there is a clear finding of a reason why they cannot. In Chera v. Chera, 2008 BCCA, the Court of Appeal revisited the issue of third party custody once again and held that the entitlement of parents to raise their children does not create a presumption in favour of the parent. While there is no presumption in favour of a biological parent, the court will start with the common sense inference that parents should be entitled to raise their own children. The grandparent or other third party must show the court that the parent or parents of the child cannot discharge their parental duties effectively and then show the court that the best interests of the child would be most served by placing the child in their care.
Under the Family Relations Act, the court must give paramount consideration to the best interests of the child taking into consideration the factors enumerated in section 24 which are the health and emotional well being of the child, the views of the child if appropriate, the love, affection and similar ties that exist between the child and other persons, education and training for the child, and the capacity of each person seeking custody and their ability to exercise the rights and duties that come with custody. While the court cannot predict the future with certainty, it must make its best judgment as to which course of action for a child appears to hold the fewest risks.
The courts have granted custody to a third party where it would be in the best interests of the child. The circumstances include, but are not be limited to:
1. Where the child had developed a strong bond with the third party (T.E.K. v. British Columbia (Superintendent of Family and Child Service), [1996] B.C.J. No. 900 (QL) (S.C.));
2. Where there is risk to a child living with the birth parents (J.T. v. British Columbia (Superintendent of Family and Child Service), [1994] B.C.J. No. 3109 (QL).
If you are a grandparent seeking custody of a grandchild, please call 604 602 9000 to book an initial consultation with a lawyer at the MacLean Family Law Group.
