Conversations on adoption, family, parentage and the law

Grandparents, custody and adoption

For many of us, the word “retirement” conjures up images of trips we would like to take, novels not yet read (or written), the luxury of easing into part-time work or starting a home-based business.

My guess is few envision toddlers underfoot, or carpooling teens to soccer games.

Yet when a parent is struggling to raise their child, it is not uncommon for grandparents– often in their 60s or 70s, and often struggling financially themselves– to step forward and fill the breach.  In B.C., more children are being raised by grandparents than in foster care.  In 2010, over 10,000 B.C. households with children were headed by grandparents.

Legal options for grandparents range from informal arrangements to adoption and everything in between, including custody.  Adopting a grandchild severs the legal parent-child relationship, and puts the grandparent legally in the place of the parent.   In many cases, adoption will be inappropriate or viewed by the grandparents as too drastic a step.

When difficulties first arise in a family, grandparents and other family members may not realize that non-parents can apply to court for custody and guardianship of a child.  With a custody order, the grandparent has legal guardianship of the child but does not become their legal parent.  In Canada, non-parents may obtain custody if it is in the child’s best interests.

Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside — Supreme  Court of Canada in  King v. Low [1985] 1 S.C.R. 87

B.C.’s Family Relations Act (s. 35) specifically states that grandparents, other relatives or non-relatives may apply for custody of a child.

Adopting or obtaining an order for custody or guardianship gives grandparents more legal security, but can have other unintended consequences.  In some cases, the financial assistance available to grandparents who care for children through a government-run fostering program such as B.C.’s Extended Family Program is not available to grandparents who adopt or have legal custody or guardianship of their grandchild.

In other cases, grandparents who are unaware of the financial help that is available may feel forced to allow their grandchildren to go into foster care because they can’t afford to care for them.

Grandparents should obtain legal advice and find out what resources are available to them in their jurisdiction before making decisions about how to approach their legal relationship with their grandchild.   In B.C., the Parent Support Services Society offers support and information programs for grandparents raising grandchildren, including legal guides, on-line resources and local support groups in communities throughout Vancouver Island, the Lower Mainland and the Gulf Islands.   They also have a new toll-free Grandparents Raising Grandchildren Support Line — 1-855-474-9777.


Consent to Adoption

The purpose of this Act is to provide for new and permanent family ties through adoption, giving paramount consideration in every respect to the child’s best interests.  B.C. Adoption Act, section 2

Adoption is a transformational moment in the life of a family.  It marks legal recognition of a new parent-child relationship.  Equally significantly, it severs the legal relationship between the child and his or her birth parent.

While we celebrate adoption as a means of creating and recognizing family, in some contexts adoption has had a darker side.  Fear of unethical adoption practices, including child trafficking, has led Canada and other nations to suspend the adoption of children from a number of countries, including Cambodia, Nepal and Guatemala.

Closer to home, there is the recent news that a possible class action lawsuit has been commenced in B.C., seeking compensastion for birth mothers who allege they were coerced into relinquishing their babies for adoption when they gave birth outside of marriage in the 1940s – 1990s.  The class action has yet to be certified, but is anticipated to be the first of several such lawsuits that are expected to be filed across the country.

Contemporary adoption law recognizes the fundamental significance of severing the legal parent-child relationship, and strives to balance respect for birth parents with the overarching objective of furthering the child’s best interests.   In B.C., a birth mother’s consent to the adoption of her infant is only valid if it is given at least 10 days after the birth and is made in writing, under oath, after having been advised about the adoption by a lawyer or social worker.  The birth mother may retract her consent until 30 days after the child’s birth, even if the infant has already been placed with her prospective adoptive parents.

Birth fathers must also consent, provided they have acknowledged paternity, and/or signed the child’s birth registration or registered with the Birth Father’s Registry  (or have otherwise been identified as the child’s father under the Adoption Act).   An adoption cannot proceed without the birth parents’ consent unless the court is satisfied it is the child’s best interests to do so.

And when an older child is being adopted, the child herself must consent.  Commonly these are step-parent adoption situations, or cases where a child has been in the permanent care of the Ministry.  If the child is 12 or older, the court cannot make the adoption order without the child’s consent (unless she is incapable of giving that consent due to a mental disability).  The child can also revoke her consent at any time until the order is made.  Children over the age of 6 but under 12 must be interviewed by a social worker or other qualified person and a report of their views put before the court (see Adoption Regulation, section 16).