When families face challenges that affect the well-being of children, questions about custody and guardianship often arise. In Alberta, the legal system recognizes the importance of maintaining stable and nurturing environments for children, and this extends to considering the role of grandparents. In this post, we will explore the circumstances under which grandparents can apply for custody, the legal process involved, and the factors considered by the court.
Understanding the Legal Landscape:
In Alberta, the Family Law Act, SA 2003, c. F-4.5, governs matters related to custody and access. While the Act primarily focuses on the rights and responsibilities of parents, it also acknowledges the potential role of other significant individuals in a child’s life, including grandparents.
When Can Grandparents Apply for Custody?
Grandparents can apply for custody under certain circumstances, such as:
- Parental Unfitness: If both parents are deemed unfit to care for the child, the court may consider granting custody to a grandparent.
- Child’s Best Interests: The court will always prioritize the best interests of the child. If it is in the child’s best interest to live with a grandparent, the court may grant custody.
In most cases, it is also necessary for a Grandparent to first apply to the Court for leave to make the application for contact time with their grandchildren, as set out in s. 35(2) of the Act.
Types of Custody Grandparents Can Seek:
Grandparents can seek different types of custody arrangements, including:
- Sole Custody: The child resides with one grandparent, who has primary decision-making authority.
- Joint Custody: Shared decision-making responsibilities between the grandparents and one or both parents.
- Access/Contact Rights: Even if grandparents do not seek custody, they may apply for access/contact rights to maintain a relationship with the child.
Legal Process for Grandparents Seeking Custody:
- Consultation with a Family Lawyer: Grandparents considering seeking custody should consult with a family lawyer to understand their rights, responsibilities, and the legal process.
- Mediation: Mediation may be required to attempt to resolve the matter outside of court. A mediator can help facilitate discussions between grandparents and parents.
- Court Application: If mediation is unsuccessful, grandparents can file a court application seeking custody. The court will assess the circumstances and make decisions based on the best interests of the child.
Factors Considered by the Court:
- Child’s Wishes: Depending on the child’s age and maturity, their wishes may be considered. This was confirmed in the case of SK v DG, ABKA 425, wherein Loparco J referred to the United Nations Convention on the Rights of the Child in the context of a child’s views and preferences being heard and considered with respect to parenting.
- Relationship with Grandparents: The court will assess the nature and strength of the relationship between the child and the grandparents.
- Stability and Support: The ability of the grandparents to provide a stable and supportive environment will be a key consideration.
Even if the court does not grant custody, grandparents can still play a crucial role in a child’s life through regular contact, provided it aligns with the child’s best interests.
Grandparents in Alberta can apply for custody when circumstances warrant, with the primary focus being the best interests of the child. Alternatively, they can apply for access/contact with the child. Navigating custody matters involving grandparents requires careful consideration of legal avenues and collaboration with family lawyers to ensure a positive outcome that prioritizes the well-being of the child.
Posted by Gary Kirk