Ex-Files My son has cut me off from seeing my grandchildren

Question: I have two grandchildren aged 11 and 13 who I have a very close relationship with. Until recently, I would collect them from school twice a week and care for them in the afternoons while their parents worked. They also stayed weekends with me once per month. A couple of months ago my son and I had a disagreement that we have yet to resolve. Since then, he has refused to let me see, or even speak with my grandchildren. I am devastated. What rights do I have in this situation? What practical suggestions do you have for me?

Answer: It is understandable that you find the situation upsetting. It is also disappointing that your son is not placing the interests of his children ahead of the conflict with you. I outline below first some practical suggestions, and then information about the legal position.

Practical suggestions

I would attempt to resolve the issue out of court first if possible. Family Court proceedings are expensive and would likely widen the rift between you and your son.

As a first step, I would contact your son directly and say that you want to re-establish regular contact with the children. Reassure him that you will not discuss the conflict between the two of you with the children, nor will you make any disparaging remarks about him. If this is unsuccessful then I suggest engaging a family lawyer and re-issuing the request through the lawyer. The lawyer could propose a mediation or roundtable conference.

Unfortunately, out-of-court attempts to resolve family law issues do not always work. Sometimes court proceedings are necessary if a party is simply unwilling to negotiate or is being unreasonable. Be reassured though that most proceedings still resolve without the need for any court hearing.

In any proceedings regarding care and contact with children, the court will appoint a lawyer for the child(ren) who will meet with the children to ascertain their views. The lawyer for child, although not a mediator, will often serve as an intermediary and make suggestions to try and resolve the issues.

Options through the Family Court

Under New Zealand legislation grandparents do not have the same level of “rights” as parents. A parent being denied contact can (usually) simply make an application for contact under the Care of Children Act 2004, but grandparents face an additional hurdle of needing to first seek the court’s “leave” (i.e. permission) to apply for contact with a child.

If you are granted leave, you would still need to bring a substantive application and convince the judge that an order for contact should be made.

There are some relevant principles in the Care of Children Act 2004 that would support your claim.

First, in any proceeding under the Care of Children Act 2004 the “first and paramount consideration” is the child or children’s welfare and best interests. What this means is that the children’s interests are prioritised over the interests and preferences of any adult if those interests do not align. No doubt the Court would see a continuing relationship with the children’s grandparents as a priority over you and your son’s disagreement. Secondly, section 5 of the Care of Children Act 2004 sets out principles relating to the child’s welfare and best interests. Included in that section are the following principles:

  1. That the child’s relationship with his or her whanau (including grandparents) should be “preserved and strengthened”; and
  2. The child’s identity, including “culture, language, and religious denomination and practice” should be “preserved and strengthened.”

Both of these would support your claim.

If you file an application in the Family Court, the children will have an opportunity to express their views. A lawyer will be appointed for them for this purpose. At the ages of 11 and 13, their views would carry a lot of weight. Some of my clients in similar circumstances express the concern that the children’s views will have been influenced by a parent. However, lawyers appointed for children are experienced in recognising where this is occurring, and they are often skilled at questioning children in such a way as to elicit their actual views. Family Court judges are also aware that children’s expressed views might have been influenced by a parent or parents.

In your case, the court would likely consider:

  1. That you have had frequent and very regular contact with the children in the past; and
  2. The informal contact arrangement has been stopped abruptly due to an adult disagreement rather than some issue that is relevant to the children’s welfare or best interests.

My view is that your prospects of success in being granted leave and contact with the grandchildren are promising based on the information you have provided, but ultimately it will depend on all the circumstances of the case.

Before you can file an application in the Family Court you will need to participate in Family Dispute Resolution with your son. This is a compulsory pre-requisite for nearly all parenting matters, except those involving safety or particularly urgent issues. You will need to supply the court with a certificate of completion, which would also be provided if your son refuses to participate.

This article was first published with NZ Herald

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