Grandparent-Grandchild Access: A Legal Analysis

GRANDPARENTS STANDING IN LOCO PARENTIS

When grandparents have served as a custodial parent for the child for a significant period of time (called standing in loco parentis to the child), they may successfully argue, as in Deshane v. Perry,[94] for example, that they served as a "psychological parent" to the child and disruption of this relationship would be psychologically unsettling for the child.

Derdeyn generally believes that grandparents commencing litigation to obtain access to their grandchildren, typically at very vulnerable times in their lives, "can only be experienced as yet another stress or threat by the child’s primary caretaker and, therefore, by the child."[95]  However, Derdeyn qualifies this for situations in which a grandparent has had custody of a grandchild for a significant period of time.  In most of these cases, Derdeyn states, the grandparent would clearly be the child’s "psychological parent."[96]

In Gallant v. Jackson,[97] the court adopted this perspective for paternal grandparents who provided not custodial care, but rather regular daytime care, to their grandchildren while the parents were at work.  As such, the court order provided for regular access.

Most of the Canadian and American cases and literature mentioned in this paper, even when proposing to severely limit grandparent access, distinguish grandparents standing in loco parentis from grandparents exercising some or no access.

That courts do not view parents and non-parents on the same legal plane, absent the non-parent standing in loco parentis to a child, was commented on in Morecraft v. Morecraft:

While the "best interests" must remain paramount, the considerations revolving around the issue of access to third parties, including blood relatives, are far different from those involving natural parents.  There is no automatic right of access to third parties.[98]

In the Annotation to Cyrenne v. Moar, Professor James McLeod supports the Morecraft perspective, commenting as follows:

Given the prima facie entitlement of the non-custodial parent to access in substance, if not in form, the wishes of the custodial parent will be largely irrelevant unless the custodial parent can build a case based upon the welfare of the child.  The custodial parent is expected to sublimate her feelings and controversies with the other parent but not with strangers or relatives, who in the face of her objection will have to build their case.[99]  (Emphasis added)

In Hooper v. Hooper,[100] the court recognized the difference between parents contesting custody and access against each other—where they have equal claims—and grandparents litigating against parents by stating that it is not a "level playing field" for grandparents.  Section 20 (1) of the Ontario Children’s Law Reform Act gives some effect to this proposition by stating that only the father and mother of a child have an equal entitlement to custody of their child.

In Beaumont v. Fransden, Justice Katarynych considered a grandparent’s claim for access quite differently from that of a non-custodial parent:

Although access must clearly be determined on the basis of the child’s best interests, and not the parent’s, a court must keep in mind that the Children’s Law Reform Act distinguishes between a custodial parent’s responsibility to a non-custodial parent and her responsibility to others who desire access to a child in her custody.  There is a specific statutory duty cast on a custodial parent to encourage and support a child’s access to the non-custodial parent.  There is no specific legal obligation on a custodial parent to encourage access between a child and a grandparent.  From that, one can reasonably infer that the right of access between a non-custodial parent and child are qualitatively different than those between a child and extended family members.  Any guidance provided by the jurisprudence must be assessed with that in mind.[101]

It should be noted, however, that only a very broad interpretation of the Act could yield the view that it imposes a specific statutory obligation on a parent to encourage and support access to the non-custodial parent in the same way as do sections 16(10) and 17(9) of the Divorce Act.

In an American context, Professor Kathleen Bean views grandparents who have acted in a parenting capacity (that is, as psychological parents) in a dramatically different way from other grandparents whose access claims she believes to be an invasion of family autonomy:

The appropriateness of focusing on the child as opposed to the alleged void in the child’s life is reflected in the one traditional exception to the old fortress of parental rights.  When the grandparent was temporary custodian or stood in loco parentis to the child, the courts would sometimes allow parental rights to be penetrated for the purpose of ordering grandparent visitation.  Because the in loco parentis relationship often occurs as a result of a parent’s death or departure, the child may have additional needs for the continuity of the relationship.  Such a situation differs from a mere grandparent-grandchild relationship, and, depending on the facts, this distinction may represent a basis for noting the difference between a relationship which is beneficial to the child’s welfare and one which is necessary to the child’s welfare.[102]

THE BEST INTERESTS OF THE CHILD TEST

As indicated, the best interests of the child test governs child custody and access disputes in Canada.  However, if it is accepted that third party access claims cannot be viewed by the courts in the same way as parental claims, then the question must asked about the appropriateness of using the best interests test in the same fashion in which it is presently being applied.

In Troxel, the United States Supreme Court chose not to comment on the Washington Supreme Court’s ruling concerning the best interests test.  The Washington Supreme Court held that the Due Process Clause in the U.S. Constitution required the non-parent visitation statute to include a showing of harm or potential harm as a condition of granting access.  The court noted the Tennessee Supreme Court decision in Hawk v. Hawk when it held:

The federal cases that support the constitutional right to rear one’s child and right to family privacy also indicate that the state’s power to interfere in the parent-child relationship is subject to a finding of harm to the child….  The requirement of harm is the sole protection that parents have against pervasive state interference in the parenting process.[103]

Professor Bean criticizes the use of the best interests test for non-parental access claims:

Intervention based solely on a best interest of the child standard, with no showing of harm, is an unconstitutional infringement upon and deprivation of the right of parents to raise their child in accord with their own values.  Apart from the constitutional concerns, public policy concerns should override consideration of grandparent visitation requests based solely on an allegation that it is in the best interest of the child.[104]

The Washington Supreme Court in Troxel acknowledged situations in which a grandparent may have acted in loco parentis to his or her grandchild and in which he or she wishes to continue contact over the objection of the parent, but was also critical of the strict application of the best interests test:

We recognize that in certain circumstances where a child has enjoyed a substantial relationship with a third person, arbitrarily depriving the child of the relationship could cause severe psychological harm to the child.  The difficulty, however, is that such a standard is not required in R.C.W. 26.10.160 (3)….  The [statute] allows "any person" to petition for forced visitation of a child at "any time" with the only requirement being that the visitation serve the best interest of the child.  There is no threshold requirement of a finding of harm to the child as a result of the discontinuation of the visitation.

Short of preventing harm to the child, the standard of "best interest of the child" is insufficient to serve as a compelling state interest overruling a parent’s fundamental rights.[105]

In this regard, Professor Joan Bohl notes her concern for the potential undermining of parental authority:  To impose grandparent visitation against the express wishes of parents without showing harm to the child if visitation does not occur, is to invade the "private realm" of family life.[106]

In Canada, courts have also held that absent abuse or neglect, parents have significant and controlling rights over their children’s lives.  Indeed, as indicated earlier in Morecraft, the court held that:

Great weight must be given to the wishes of the custodial parents and care must be taken not to unduly interfere with the parents’ inherent right to determine the course of their child’s upbringing.[107]  (Emphasis added)

In Salter v. Borden, the court commented on the rights of parents to rear their children without outside intervention:

Traditionally any access to grandparents has flowed from the parent.  It is best that parents make these decisions as the law clearly recognizes the parental right to control the upbringing of their children.  Rarely will the state interfere with the moral and legal parental obligation to determine the best course in life for their children.[108]

As mentioned, many of the cases dealing with grandparent access inherently involve acrimony and hostility between the grandparents and parents to the point that they are litigating the matter.  In such circumstances, the courts decide both to grant and deny access often depending on the degree of discord.  However, in situations in which granting or denying access will have either actual or potential adverse consequences on the child, this will be a significant factor in the court’s determination.

The Canadian courts have in many instances used, in the context of the best interests test, a harm-based analysis when determining the appropriateness of grandparent-grandchild access.  In Chapman, the Ontario Court of Appeal found no evidence that the parents’ decision to limit their children’s access to their grandmother was harmful.  Justice Abella stated:

Although the parents’ conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children.  It should therefore be respected by the court and the children’s best interests left in the exclusive care of their parents.[109]

In V. (G.) v. S. (L.), the court denied the grandparents’ application for access to the child "K." and held:

If the court were of the view that [their decision to deny access] would negatively affect K., then the wishes of the respondents might well be overridden.  However, no evidence has been presented to establish that K. is now or will be adversely affected in a significant manner by not resuming the relationship that she had with the applicants.  Therefore, there is no basis upon which the court should disregard the parents’ wishes.

Although there would be benefits to K., I conclude on the balance of probabilities, that there could be a detrimental effect on her on a long-term basis.  The security of her family, the authority of her parents and her relationship within her family might well be undermined by access to the applicants...

I have accorded a great deal of weight to the wishes of… the natural parents of K. and they are the ones who have the responsibility of nurturing and rearing her.  Their opinion of who should have contact with their child deserves great consideration.  It is not the only circumstance to be considered but it is an important one.  I am cognizant of the fact that to override their parental wishes could damage the parent-and-child relationship that they have with K. and also negatively affect their family functioning.[110]

In this case, the court looked at the possible harm to the child in the context of the direct effect of loss of contact with her grandparents as well as the adverse impact on the nuclear family in the event access was ordered.

In D. W. v. M. P., the court granted limited access to a grandmother whose behaviour it regarded as offensive because of the importance of her relationship to the child and the concern:

…that totally to sever any connection between child and grandmother could well damage the child.  On the other side of the coin, any repetition by the applicant of her malicious conduct could be even more damaging—a true Hobson’s choice.[111]

In B. (M.) v. W. (C.), the court denied the grandparents’ access application because of their very negative behaviour toward the father.  The court held that:

It is prudent to examine the reasonableness of the parents who would deny access by grandparents, particularly when it is alleged that the grandparents are a destructive influence.  I have instructed myself that such allegations and resulting animosity between the parties are not determinative but, if serious enough to impact on the children, ought to be considered as a factor.

…I find that any of the so-called traditional benefits which might flow from grandparent access after several years of no contact have been overwhelmed by the negative impact of their conduct upon the W. family generally and upon the children, in particular.  To now grant them access in the context of this case, charged as it is with hostility, anger and distrust, has not been demonstrated to me to be of any benefit to the children.[112]

In T. (A.H.) v. P. (E.),[113] the paternal aunt and uncle of two young children had been granted custody in a bitter dispute with the maternal grandparents following the death of the children’s parents.  The grandparents aggressively and ruthlessly pursued custody and their behaviour was criticized by the court.  The Alberta Court of Appeal somewhat hesitatingly and seemingly sentimentally granted limited access to the grandparents by focussing on the potential harm that might accrue to the children if access were entirely terminated:

[The grandparents] conduct has shown that they are not capable of maintaining a supportive grandparent role...

Nonetheless, we are concerned that a complete cessation of visiting rights would impact on these young children negatively, having regard to their situation.  They know their grandparents.  Grandparents can have a great role in children’s lives, even if they have minimum contact.[114]

The harm-based analysis in this case must be juxtaposed, in these factual circumstances, with the court’s sentimental view of the role of grandparents in general.  By its own comments, the court’s view of these particular grandparents was far from charitable and yet it chose to cling to the hopeful prospect that the grandparents could learn to behave appropriately.  The court was, in part, seemingly motivated to maintain some form of access due to the very tragic circumstances in which the children found themselves.

GRANDPARENT ACCESS AS A POSSIBLE BENEFIT TO GRANDCHILDREN

Courts in both Canada and the United States are frequently tempted to allow non-parents’ access claims to succeed because, in their subjective view, the children would benefit in some way that would better their lives.  With good intentions, judges want to ensure the best possible outcome for children who are the subjects of the litigation before them.  However, there are significant risks associated with an approach that allows judges to displace the role of otherwise fully competent and reasonable parents to make decisions about contact between their children and non-parents.  Professor Bean observes that:

To allow grandparents to receive visitation with their grandchildren because the court determines that the child’s development will be "better because of it" is to set precedent which places in the courts the authority to direct the development of children; it gives to the state what is best reserved for the parents.[115]

In the case of In re Marriage of Wellman, the court held that "the state has no general authority to dictate to parents the manner in which they should rear their children."[116]

Nor, Professor Bean asserts, should:

the state have such authority even when the parents have made the "wrong" decision.  Even assuming that the parent makes a mistake in denying the child the right to see the grandparent, the fundamental right of parents to make decisions concerning their children must include the right to make wrong decisions.  For the state to delegate to the parents the authority to raise the child as the parents see fit, except when the state thinks another choice would be better, is to give the parents no authority at all.  "You may do whatever you choose, so long as it is what I would choose also" does not constitute a delegation of authority.  If there is no delegation of authority, there is no barrier between the state and how parents raise their children.

When there is no barrier, parents will find the state directing the development of their child whenever the judge determines another course of action might be better.[117]

In Bennett v. Jeffreys, the New York Court of Appeals ruled that courts do not have the constitutional authority to make a child custody decision due to a better alternative being available.  The court held that:

Absent extraordinary circumstances, narrowly categorized, it is not within the power of a court, or, by delegation of the Legislature or court, a social agency, to make significant decisions concerning the custody of children, merely because it could make a better decision or disposition.  The State is parens patriae and always has been, but it has not displaced the parent in right or responsibility.[118]

Hawk v. Hawk[119] affirmed the principle enunciated in Bennett v. Jeffreys.  So, too, did the Washington Supreme Court in Troxel when the majority held:

Short of preventing harm to the child, the standard of "best interest of the child" is sufficient to serve as compelling state interest overruling a parent’s fundamental rights.  State intervention to better a child’s quality of life through third party visitation is not justified where the child’s circumstances are otherwise satisfactory.  To suggest otherwise would be the logical equivalent to asserting that the state has the authority to break up stable families and redistribute its infant population to provide each child with the "best family".  It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a ‘better’ decision.[120]

The United States Supreme Court affirmed the Washington Supreme Court’s finding and stated:

The Due Process Clause does not permit a state to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a "better" decision could be made.[121]

In Daley v. Daley, the Nova Scotia Family Court denied access to grandparents even though it considered that access to be of possible benefit to the child.  In respecting the custodial mother’s right to make decisions about her child, the court stated:

I am of the view that unless there are grave extenuating circumstances, children can benefit from the involvement of the extended family, as long as that involvement is not destructive or divisive in nature.  However, I am not convinced that court ordered access is necessarily in the best interests of the child, even where access is a good thing unless there are extenuating circumstances.  If this were the case, the potential is there to have a child’s entire life scheduled by court order to be with those with whom the child’s interaction is considered appropriate and important.[122]

In Bourgeois v. Bastarache, the maternal grandmother brought a motion for custody of her granddaughter against the father.  The child had been in the sole custody of her mother for six years prior to the mother’s death, with the grandmother having significant access.  The grandmother could likely offer the child a better lifestyle but the court rejected this argument and held that:

In 1993, I take the law to be that a natural parent who is of good character and is able and willing to support his or her child in a satisfactory manner is not to be deprived of that right merely because on a nice balancing of material and social advantages the court is of the opinion that others, who wish to do so, could provide better.[123]

BURDEN OF PROOF

In a mobility rights dispute between parents, the Supreme Court of Canada in Gordon v. Goertz[124] held that both parties bear an evidentiary burden to demonstrate where the best interests of the child lie.  The Supreme Court affirmed the principle articulated by Justice Morden in Carter v. Brooks when he stated:

I do not think that the process should begin with a general rule that one of the parties will be unsuccessful unless he or she satisfies a specified burden of proof.  This over-emphasizes the adversary nature of the proceedings and depreciates the Court’s parens patriae responsibility.  Both parents should bear an evidential burden.  At the end of process, the Court should arrive at a determinate conclusion on the result which better accords with the best interests of the child.[125]

There are two perspectives that cloud the issue of who has the burden of proof to show that grandparent-grandchild access would be in child’s best interest.  First, as mentioned, many judges cling to the sentimental notion and assumption that grandparent access, even when it is court-ordered, is usually a very positive influence.  Holding this perspective may tilt the judicial decision regarding who has the burden of proof.  Second, the use of a strict best interests test itself rather than a harm-based component makes it unclear, in practice, who has the onus upon them.

In F. (N.) v. S. (H.L.),[126] the B.C. Court of Appeal affirmed the B.C. Supreme Court’s reversal of a Provincial Court decision to place the burden of proof on the mother to show that access to a grandmother who was a prostitute would be harmful to the child.  The Court of Appeal held that the onus was on the grandmother, not the mother, to show that the proposed access was in the child’s best interests.

In Wylde v. Wylde, the court held that "the onus is clearly on the grandparents to show a benefit to the child before the court would interfere with the parental rights."[127]

In Hooper v. Hooper, the court held that "it is up to them [grandparents] to demonstrate that their access to the children will be beneficial to them."[128]

Although the statements in both Wylde and Hooper regarding who holds the burden of proof are likely correct, it is likely incorrect that all that needs to be shown is merely a benefit to the child.  As mentioned, the standard of proving a benefit opens the door for judges to take the place of competent and reasonable parents to make decisions about their children’s interaction with non-parents.

In their 1999 Annual Review of Family Law, Professor James McLeod and Alfred Mamo agree that the onus is on the non-parent who wishes to have a relationship with a child to demonstrate why it is in that child’s best interests for access to take place.[129]

In B. (M.) v. W. (C.), the court denied the maternal grandparents access to their two grandchildren and held that:

It is the responsibility of the applicants to prove on a balance of probabilities that the best interests of the children will be best served by permitting access.[130]

The Nova Scotia Family Court in Jayaratham v. Devarajan[131] also held the onus to be on the applicant grandparents.

In Troxel, the United States Supreme Court found that the Superior Court judge’s presumption that the grandparents’ access application should succeed unless the children would be adversely affected was incorrect.  Justice O’Connor wrote that "in effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters."[132]

Professor Bean is concerned that using a strict best interests of the child test rather than applying a threshold harm-based analysis places the onus on the parent rather than the grandparent:

Without a threshold that is several steps away from "best interest of the child" and towards demonstrative harm, a best interest analysis theoretically allocates a burden to the grandparent, but in practice allocates a real burden to the parents; this burden requires evidence that there is an inherently obnoxious intrusion into the privacy of the family.  Instead of requiring grandparents to show they are necessary to the child’s welfare, the courts will invariably look to the parents to say "Why not?  Aren’t these grandparents good?" In such a case, the parent must argue that no, the grandparents are not good.[133]

Article 611 of the Civil Code of Quebec is a clear expression of a legislature reversing the burden of proof and placing it squarely on the parent.  The onus placed on a litigant in Quebec is even higher than in other jurisdictions, since a parent has to demonstrate that there exists a "grave reason" why access to his or her child by a grandparent should not take place.

Apart from Quebec courts, it seems clear that the courts treat the burden of proof in disputes between a grandparent and a parent differently from that in disputes between parents.  This is another manifestation of judicial recognition that the legal claims of non-parents and parents are not viewed as being on the same plane.

CHILDREN’S WISHES

Given that the right of access is that of the child, then it is appropriate, when possible, that the views and preferences of a child be sought.  For example, section 24 (2)(b) of the Ontario Children’s Law Reform Act and section 32.1 (4)(b) of the Alberta Provincial Court Act provide for such input when the court is determining whether access is in the best interests of a child.

In B. (M.) v. W. (C.), the evidence presented to the court indicated that the children, ages 11 and 14, did not want to have contact with their maternal grandparents.  The court commented on the relevance and weight of the children’s wishes as follows:

They are at the age and stage where their wishes should receive considerable weight.  I am satisfied that the children’s wishes do not flow from undue influence or control by their parents in an effort to thwart the applicant’s desire for contact.  In the extreme circumstances of this case, I can see no advantage in forcing the children into an access arrangement in which they will feel insecure, uncomfortable and unhappy.[134]

Thompson et al. suggest that a guardian ad litem might help focus on the child’s interests and needs.[135]  In Ontario, court-ordered counsel for a child may be provided by the Office of the Children’s Lawyer.  It is recommended that all provinces and territories follow Ontario’s progressive lead and establish a system court-ordered independent counsel representing children in custody and access disputes, including those involving grandparents.  Child’s counsel focus their efforts on gathering relevant evidence about the effect of grandparent access on their child clients.  It can be particularly helpful to the court to have, placed in context, the input of children who are able to express their views and preferences regarding their grandparents’ access.  Given child’s counsel’s role using dispute resolution techniques with the parties and their lawyers they are uniquely positioned to, when appropriate, settle cases.

Date modified: