A legal framework for grandparent contact

This month, Harmans Lawyers underlines the legal position of grandparents when it comes to having contact with their grandchildren.

“My daughter-in-law, my son etc. won’t let me see my grandchild. What can I do?”

“My son, my daughter-in-law are incapable of looking after my grandchild or grandchildren and I believe they are unsafe. What should I do?”

“What legal redress can I access to ensure their safety?” 

“It’s so expensive, how can I afford legal representation? Can I get Legal Aid?”

Each of the above scenarios could run to a chapter in a family law text. For present purposes, I intend to confine this article to some comment on the underlying legal position and signposting steps you can take to resume or improve contact, ensure grandchildren are safe and also explore opportunities for external funding (if you want legal representation and you do not have sufficient resources to fund legal representation).

Conventional wisdom of the importance of grandparents in a grandchild’s life is preserved both in underlying legislation and decided cases.

We live in a challenging environment complicated by the need to respond to Covid-19 and the uncertainties and stresses that this creates virtually on a daily basis. Resilience is challenged and that in turn challenges the relationships we have with those who are near and dear to us, and sadly on occasion that leads to fall outs within families. Children can become the unintended victims in the sense that contact with important people in their lives (grandparents) can be diminished or in some cases cut off entirely because of adult issues. 

How the legal system sees the grandparent relationship

It is reassuring to note that there are decisions of the Courts which recognise and affirm the importance of grandparents in a child’s life. 

In the 2016 decision Sinclair v Hayden [2016] NZFC 3648, the Court helpfully confirms that the conventional wisdom that it takes “a village to raise a child.” Whilst parents retain the primary role in providing care for the children in making important decisions for them, the legislation (Care of Children Act 2004) recognizes at principle 5(e) that a child should “continue to have a relationship with both his or her parents, and that a child’s relationship with his or her family group, whanau, hapu or Iwi should be “preserved and strengthened.” That principle is the legislative pathway for grandparents seeking to establish a resumption of contact with their grandchildren where it has been cut off or frustrated at the outset.

The Act is effectively saying that it is a child’s right to have those relationships (i.e., contact with grandparents preserved and strengthened).

In Sinclair v Hayden Judge Russell commented that grandparents must not diminish or inadvertently affect the role the parents play in the child’s upbringing. Having said that, however, the Judge then offered this commentary on the importance of grandparents:

 “…. good grandparents can teach children much about life which the children’s own parents cannot.  They come from a different generation and can teach children matters from a different perspective than the child’s own parents”. 

In this case, the Judge found that grandparents were positive role models. 

What to do to improve or resume contact

In practical terms (if you find yourself in the difficult situation of not being able to have contact with your grandchildren), then the first step is to go through a process called Family Dispute Resolution, or “FDR”. This is a mediation process and in Christchurch you can contact Family Works or Fairway Resolution to start the ball rolling. This is available in circumstances where you have tried to persuade your children to allow contact and they have either stopped contact or refused to engage with you. They will provide some in house counselling and discussions, and ultimately run a mediation, led by a professional in the area. FDR does involve an upfront fee from you, however depending on your circumstances it could be free, for everyone involved. The above providers offer funded services depending on your finances, and there are a number of other providers who also provide this service privately. If you approach your local provider, they will be able to provide further information in that regard. 

If that process is unsuccessful, then you would need to apply for leave (section 47(e)) i.e., permission from the Court to commence your application. A new application motivated by a genuine interest in your grandchildren and a desire to have a meaningful relationship with them is likely to be granted. The application involves a formal application, an affidavit outlining particular circumstances of your case and your grandchild’s situation and what you want. It is served on the children’s parents who then get an opportunity to respond. A lawyer can in certain circumstances be appointed to ascertain the views of the children. 

It is not unusual for that process to then take many months until you reach the point where you get a hearing. On the upside, the majority of family law cases settle before a hearing is required. An application could be the spark that helps families engage and reach a satisfactory outcome. 

If you have a concern that your grandchild is living in an unsafe environment and your efforts to engage with the parents have been rebuffed or ignored, then in the first instance you should contact Oranga Tamariki. It is a process known as making a referral. It is always a difficult decision for you to take but as you know from being a parent and (a grandparent), that often involves making difficult calls. You can contact Oranga Tamariki on 0508 326 459.

In circumstances where you do not have sufficient resources of your own, you can apply for Legal Aid. Again, that process should be undertaken with your lawyer who will make an application and you should get a response within 1 -2 weeks which will tell you whether or not your application would be funded.

If you find yourself in the predicament above, then you should contact your lawyer to discuss what can be done. Harmans Lawyers has a team of five lawyers in the family team who have a broad depth of knowledge in the area of family law – call 03 379 7835 to discuss your situation. 

Photo credit: Nikoline Arns on Unsplash

About Harmans Lawyers

At Harmans we have experience in dealing with trust law and estate planning and can help you to ensure your Trust operates as it should Give Phillipa Shaw a call on 03 352 2293 to arrange an appointment to discuss your situation.

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