Grandparent’s Custody Rights in BC

What Are Grandparent’s Custody Rights in BC?

Certain situations give rise to grandparents’ custody rights in BC. This means grandparents can obtain custody or access to their grandchildren. Situations like these include: one or both of the parents are dead, one of the parents is a drug addict, the grandparents have no contact with either of the biological parents or neither parent is fit to care for the children. Let’s look at this concept more in-depth:

Grandparent’s custody rights in BC is a controversial area of family law. As a grandparent’s custody lawyer, I get many inquiries from loving extended family wondering if they could get some parenting time or contact rights with grandchildren. Before the BC Family Law Act came into existence in 2013, grandparents had little to no rights regarding their grandchildren, except in very limited circumstances.

The introduction of the BC Family Law brought certain extended rights for grandparents in BC. Let’s look at situations and strategies for obtaining grandparent’s custody rights in BC.

Situations for Grandparent’s Custody Rights in BC

Certain situations give rise to grandparents wanting custody rights to their grandchildren. These include:

• The biological father and/or mother has passed away;
• The biological father or mother has disappeared;
• The biological father or mother is a drug addict;
• The biological father or mother has no visitation rights to the children;
• Both parents are dead or have no access to the children.

Even given the above situations, a grandparent may not be able to obtain contact or parenting time with the grandchildren. This happens in a situation where one of the parents opposes their child from having any contact with the other parent or his/her extended family. Let’s look at strategies and how grandparents can obtain custody rights in BC.

Strategies and Examples of Grandparent’s Custody Rights in BC

Let’s looks at a few examples here to learn how to best strategize your case in winning some time with your grandchildren:

One Parent is Dead

Your son has passed away. The mother has full custody and guardianship of your grandchildren. Prior to the father passing away, he and the mother had separated and had an acrimonious separation. The mother now does not want you to have any contact with the children reasoning that she does not want to confuse the children, does not want the children to get to know you as their father is dead, etc. In this situation you should:

1. gather all evidence including pictures, emails, texts showing your loving relationship with the grandchildren before your son/daughter died. Show through detailed evidence how you were an important part of the children’s lives and them not having contact with you is not in their best interests.
2. Ask the surviving parent to meet with you, come to a mediation with you and work together and agree on something. The parent may be hesitant or be completely non-responsive to this idea. That is OK. You need to show the judge that you tried to work with the surviving parent but he/she does not want to cooperate. NOTE: if the surviving parent does not want you to have a relationship with your grandparents, you will have an uphill battle to fight. So try to be as kind and reasonable as possible – the surviving parent has much more rights than the grandparents do. It’s the reality.
3. Immediately set down an Application at the Supreme or Provincial court for contact with the children. If you delay asking for contact, it will show the judge that you didn’t care enough to act quickly. If the delay is excusable and you have a good reason for it, make sure you tell your lawyer about it.

One Parent is a Drug Addict or Doesn’t have Any Contact with Children

Your daughter experienced an unfortunate turn of events (I’m going to use ‘daughter’ for simplicity’s sake). She is addicted to drugs and does not have a home. The Ministry of Family and Children’s Service or the judge has taken away any custody rights she has to the children. She can’t see the children and neither can you. The father is upset at her actions and behaviour and doesn’t want you to see the children. In this situation:

• Follow the steps 1-3 above;
• Agree to any order or agreement that would say that you will not introduce the children to the drug-addicted mother;
• Agree to any agreement or court order that would at the beginning allow supervised access, meaning you agree to the father or a neutral third party supervising the access to make sure nothing is said or done about the drug addict parent;
• Propose counselling – specially reunification counselling that would allow you and the custodial parent to agree on parameters and cooperation with respect to times, dates and protocols with respect to when you see your grandchildren.

Both Parents are Dead or Have no Access to the Children

This area is even more complicated because you could either ask to adopt the children, become their guardians or seek parenting time or custody. If you want to become their guardians, you need to apply under the BC Family Law Act for the court to appoint you as a guardian. You cannot become a guardian by agreement. Once guardianship is obtained from the Court, getting shared or sole custody of the children is much easier.

You need to provide the evidence in #1 to #3 above. But you need to go further and explain to the court:

• Why you should be the preferred guardian; were you involved in their lives? How you they benefit from you having them as their guardian? What is your reason for wanting to become guardians?
• If you want parenting time only, show why that would be in the best interests of the children. Talk about how you would make sure they get to know their extended family and not feel abandoned.

There are many more questions and much more evidence needed for the Court to appoint you as a guardian or grant you parenting time. The best is to always at least consult with a grandparent’s rights lawyer to know exactly how to deal with this important and emotional situation. Call us at 604-974-9529 or get in touch.