What rights do grandparents have when a parent has died?
In our previous blog, we explored how grandparents have no automatic legal rights to see their grandchildren when a relationship with a parent has broken down or where parents have separated.
It may be surprising to hear that the same is true of grandparents where one (or, indeed, both) of the child’s parents have died. Grandparents in this situation have no automatic legal right to care for their grandchildren.
Following a separation, the presumption will be that children spend time with extended family members as part of that parent’s allocated contact time. However, this is further complicated when a surviving parent is preventing a deceased parent’s family members from having contact with their grandchild.
Where the surviving parent is left with sole parental responsibility, they alone will be able to make any decision about their child’s care – including who they can (and cannot) spend time with.
It should be noted that grandparents being named as guardians in a deceased parents’ will doesn’t automatically overrule the decision of any other individual with parental responsibility. Nor does it grant any legal right to contact. However, if an application is brought before the court, the will may be used as evidence of the wishes of the deceased parent.
There are a number of solutions to consider for a grandparent who find themselves in this situation, explained below.
Informal Agreement with the Surviving Parent
In most circumstances, a child will draw support and comfort from having a strong relationship with their extended family. Having informal discussions with the surviving parent may help to alleviate some of their apprehensions regarding contact, and families may be able to find common ground that enables grandparents to become a valuable part of the surviving parent’s support system.
While there will be no formalised agreement in place, reaching an amicable arrangement that facilitates regular contact can be the best option for grandparents who want to ensure that they maintain a relationship with their grandchildren.
Mediation
Families may also benefit from attending mediation.
A third-party mediator can help families to negotiate and, while they don’t make any decisions, they may be able to help the parties to reach a compromise that allows grandparents to have agreed contact with the children.
While mediation may not be fruitful in every situation (and exemptions do apply – such as where there are allegations of domestic abuse), a court will expect parties to have considered this alternative form of dispute resolution before making an application to the Family Court.
Approaching the Court for Permission to Apply for a Child Arrangements Order
As grandparents have no automatic rights over grandchildren, they will need to seek the permission of the court to make an application for a Child Arrangements Order (‘CAO’).
In making their decision, the court will consider:
- The nature of the application
- The connection between the grandparent and the child, and
- Any disruption or harm that may be suffered by the child as a result of the proceedings.
A CAO can be made to determine various issues, including who the child should live with, and who they should have contact with. The court will be primarily concerned with acting in the best interests of the child, taking into account a range of factors. Particularly influential in cases where a child has lost one parent may be preserving links with their extended family and those aspects of their identity.
Our family lawyers are on hand to help grandparents who need guidance and support regarding children arrangements. If you need advice, please contact us and we will be happy to help.