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.