Family Law... Grandparent Access and Custody

Tuesday, October 27th, 2015
Posted in: Grandparent Custody and Access Family Law by Bernard Thibault, Associate

Bernie Thibault – October 2015

Dear Grandparent(s):

Re:         Your grandchildren

Amendments to the Maintenance and Custody Act (MCA) in September of 2014 were lauded by some as a “Sunny day” for grandparents and children”[1].  The amendments made it easier for you to make applications to the court to ensure visitation or access with your grandchildren.   It is now easier because you no longer have to ask the court for permission to file the application in the first place.

But what about for those of you who think that your children, or children in-law are not capable of parenting your grandchildren?  Do you think you can do a better job?  Would your grandchildren be better off if you were responsible to make the everyday as well as major decisions required for their upbringing?  If you answered yes, you need to know that the recent amendments to the MCA were not intended to help grandparents like you.  Here is what you need to know if you are considering making an application to court for custody of your grandchild or grandchildren.

Your application will be a two-step process.  First you must apply for permission of the court, in other words “leave of the court” (leave), before your application for custody will be considered.  Once and if you have been granted leave, the court will consider your application for custody.  Regardless of whether the court has agreed to consider the application for custody or whether you are asking for leave, the court will only be interested in what is in the “best interests” of the child.

A child’s best interests are determined by a number of factors and it will be your lawyer’s job to persuade a Judge to agree that your grandchildren’s best interests lie with you.  Your job will be to provide your lawyer with the information he/she needs to do this.  The information is pertinent to both the leave application and the application for custody.  In general, you will need to consider and provide your lawyer with information including but not limited to the following:

  1. What concerns do you have about your grandchildren’s current home?    Are these concerns as a result of your own observation or the observations of others known to you?
  2. What is your current relationship with your grandchildren? Do you have visitation with your grandchildren or are they or have they ever been in your care for extended periods of time and why? If there is no contact with your grandchildren, when was the last time and in what circumstances?
  3. Consider generally how you would or have already provided for your grandchild’s needs:
If you are a grandparent and considering making an application for custody of your grandchildren you should first contact a lawyer to determine if your case is worth pursuing.
For more information about these types of applications, please visit Family Law Nova Scotia at http://www.nsfamilylaw.ca/custody-access/information-grandparents/making-custody-access-application
or contact one of the family law lawyers at MDW Law.

[1] http://www.cbc.ca/news/canada/nova-scotia/grandparents-rights-in-nova-scotia-boosted-by-new-law-1.2752415

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