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Grandparents and their children’s divorce

Date:7 MAY 2020

Grandparents often provide stability and security for their grandchildren, both in practical ways and by way of emotional support, and it can be a very significant relationship for both the grandchildren and the grandparents. However, there are issues which need to be considered in the event that the parents’ relationship breaks down.

1. Position on a parent’s death - Testamentary guardianship

Grandparents may be concerned about what will happen to their grandchildren in the event that the children’s parents separate/divorce and then die. They may be particularly worried about their ongoing relationship with those children. A parent may wish to provide that a grandparent is made guardian of the children on the parent’s death. Will this be effective?

This depends on:

  1. Whether  the deceased parent had “parental responsibility” (PR)  for the child. Parental responsibility means all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to the child and his property by law. The mother automatically has PR. The father has PR if he is married to the mother, is on the birth certificate (if the child is born after 1 December 2003) or if he has acquired PR. He can do this in various ways:

    i) By a parental responsibility agreement with the mother

    ii) By court order of various kinds

  2. Whether the other parent has PR.

  3. If the deceased parent has PR, he  can appoint a guardian in his will. If the other parent does not have PR, then the appointment will take place on the death of the first parent. However, if the other parent has PR, the appointment will only take effect once the other parent with PR has died unless the first parent has a court order which states that the child is to live with that parent.

It is important for grandparents to have a discussion with the parent/s of their grandchildren so that all are clear as to the legal position in relation to the grandchildren should one of the parents die so that any necessary steps may be taken in advance to secure the position.

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2. Contact with grandchildren if their child separates/divorces

The position in relation to grandparents seeing their children after separation depends largely on the degree of co operation between the parents themselves, as well as with the grandparents.  If both parents have a substantial amount of time with the children, then grandparent issues do not arise much in practice because the children can see the grandparents during their time with that parent. There are exceptions to this, for instance if the other parent alleges that the grandparent is a risk to the child. There are situations in which a grandparent may want to make an application to the court to see the children. This may arise if the child is living with the other parent, and the grandparents’ child for whatever reason does not have time with their own children (if abroad, dead, or has no part in their lives). Sometimes grandparents fall out with their own child and so the grandparents need to make an application against their child.

Grandparents can make an application to court – normally permission is needed to make the application. Decisions about children’s arrangements are focussed on their welfare.

Mediation may be an effective way to resolve issues with regard to children’s arrangements.