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Grandparents Rights

From a strictly legal point of view grandparents do not have a right to “inherit” their grandchildren.  Practically speaking, if the children are orphaned then very often the grandparents are the first place they will end up but, bearing in mind there is likely to be a double generational age gap, grandparents can struggle to compete with brothers and sisters of the deceased parents who are more likely to be the appropriate age for the children.  This is, however, a practical science rather than a strictly legal one and families quite often organise these things between themselves without recrimination or difficulties.

Whoever has the children should make an application to the Court for guardianship or a Residence Order because otherwise, on the death of the parents, there would be no one left with parental responsibility for the children, which could cause practical difficulties.

Grandparents only have access to the assets of their deceased children if the law of intestacy passes those assets to them, or if the parents Will does so.  One way or the other the assets will be transmitted and it does not necessarily follow that the person who ends up with the children is also the person who ends up with the assets.

Any person having the children living with them following the death of those childrens’ parents can make claims against the Estate for the maintenance of those children if the Estate has assets that have gone elsewhere.  Parents who make Wills whilst they have minor children need to ensure that if they do appoint grandparents or indeed any other members of the family to be guardians of the children, that they send sufficient assets in their direction to enable those children to be looked after.  Trusts can be set up to preserve the underlying capital base of the assets as far as possible whilst also providing weekly maintenance to their children.

Access to grandchildren

Grandparents have no specific right to access but they are in a unique position of being able to apply under the Children Act for leave of the Court to make an application for Residence Orders, Contact Orders and other Children Act based Orders.  Generally they have to show that they have a good reason for the application, that they have a good connection with the child and that the child would not be harmed by their application.  Grandparent applications for contact arise in different scenarios:-

  • Sometimes grandparents and their own children (and the spouses of those children) fall out while everybody is still alive.
  • The second scenario is where the parents themselves have split up and the children have gone to one of the parents only.

The grandparents roles tend to decrease where their son or daughter is not the one with day to day care and control.  Grandparents often end up sharing the absent parents’ contact arrangements or trying to make their own arrangements.  They tend to get drawn into arguments and can be seen as partisan. That will affect the attitude of the “resident parent” as to whether they think that their estranged spouses parents should have contact. The grandparents have no right to contact but they can apply for  contact through the Court with the courts permission.

  • The third scenario is where the parents split up but the parent who does not have the child with them does not have any contact with the children.

It is actually quite common in many cases and grandparents find themselves then having to enlist the help of their son or daughter-in-law to ensure that there is continued contact between the absent parents wider family and those children.  Strangely, in some respects, it is the easiest way for the grandparents to get contact.  They are not competing with their own child and the parent with whom the child lives is often grateful for babysitting, otherwise they have got the children for seven days out of the seven and weekends off every so often are welcome.

About 80% of children following separation live with their mothers.  Generally speaking therefore the grandparents who have difficulties are the parents of the father of the children.

If you would like more information on your rights as a grandparent or would like to come in to talk to us, you can contact us here.

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