When we talk about custody of children in case of separation or divorce, we often exclude talking about what happens with other close relatives of the children, mainly grandparents.
However, this is a key debate: contact with grandparents is in the best interest of the children and a child’s relationship with them is, as a general rule, not only positive but even necessary for their development.
For this reason, today we analyze grandparents’ visitation rights, following a very important judgment handed down a few weeks ago by the Court of Justice of the European Union (CJEU).
It is understood that the concept of family, in relation to the right of access to children, does not only include the non-custodial parent (i.e., the parent who does not have custody of the child), but also the grandparents. The right of grandparents to maintain contact with their grandchildren is thus clearly guaranteed, also in the case of grandparents on the part of the non-custodial parent.
To understand this case it is important to have some previous concepts clear: – Single-parent custody: This is the custody exercised by only one of the parents over the children.
The children live with the custodial parent, who is mainly responsible for their care and support.
In the case of single-parent custody, with some very specific exceptions, the non-custodial parent has visitation rights.
– Visitation rights: This is the right of the non-custodial parent to physically visit and communicate with his or her children.
In reality, more than a right of the parent, it is a right of the child to interact with both parts of his or her family.
Its duration and place depends on what is agreed upon by the parties or by the judge, as the case may be.
Another important point is to know the concept of the best interest of the child, which must prevail over any right, interest or expectation of other persons.
Any measure adopted in matters of custody and guardianship must be adopted with the child’s best interests in mind, above the will or interests of the parents.
Grandparent visitation in Spain
In the case of Spain, grandparent visitation has been recognized by the courts for some time, although it was expressly introduced into our legal system through Law 42/2003, of November 21, 2003, amending the Civil Code and the Civil Procedure Law on family relations of grandchildren with grandparents(EDL 2003/127261), as stated by the judge of the Court of First Instance No. 79, Family Court of Madrid, Emelina Santana Páez, in this article.
Its Explanatory Memorandum states that the grandparents, “can play a crucial role in the stability of the child.” since“have a moral authority” that they“will allow counteracting situations of hostility or confrontation between parents and provide the child with the necessary and safe references in their environment, thus neutralizing the negative and traumatic effects of a family crisis situation.” The text also states that “Grandparents play a fundamental role of cohesion and transmission of values in the family, which is the agent of solidarity par excellence of civil society. In this area, the intervention of the public authorities must tend to ensure the maintenance of an adequate socialization space that favors the affective and personal stability of the minor, in accordance with the mandate contemplated in article 39 of the Constitution, which ensures the social, economic and legal protection of the family”.
The case of the CJEU judgment on grandparents’ visitation rights
In the case of Europe, it is important to bear in mind that a pronouncement by the Court of Justice of the EU was necessary to make it clear that the right of access also extends to grandparents (and, specifically, whether it falls within the scope of Regulation No. 2201/2003), as is the case, for the first time, in the judgment we are commenting on today.
This is important because, until this judgment, there was a possibility that, when in doubt, some member states would not recognize this right for grandparents, which could be detrimental to them in the event of international divorces or separations.
In this regard, the conclusions of the Advocate General (prior to the judgment) emphasized that, due to the different rules existing in each Member State, “grey areas” arise which generate “uncertainties, sometimes paradoxical, about the existence of rights of access in favor of persons other than the parents, in this case the grandparents”.
“Precisely in the case of grandparents, isn’t this uncertainty puzzling considering that, in principle and without prejudice to the best interests of the minor, the personal relationship between grandparents and their grandchildren remains, especially in a constantly evolving society, a fundamental source of stability for minors and an important element of the intergenerational bond, which undoubtedly contributes to the construction of their own identity?”
The conclusions of the Advocate General called for the extension to grandparents of the right of access in divorce proceedings, and did so by arguing that “such persons have de facto or de jure family ties with the child” and that the 1996 Hague Convention adopts a broad concept of the right of access, thus corroborating the integration into family life of relations between close relatives, who can play a prominent role.
In response, the judgment, dated May 31, 2018, recalls that “the Union legislature opted not to restrict the circle of persons who may exercise parental responsibility or enjoy rights of access”.
Thus, the judgment understands that the concept of rights of access includes not only the right of access of the parents to their child, but also that of other persons with whom it is important for the child to maintain personal relations, in particular his or her grandparents.
This is a small excerpt of the central part of the judgment:
“As the Advocate General pointed out in point 65 of his Opinion, it must be considered, in the light of the preparatory work on Regulation No 2201/2003, that the European Union legislature intended to extend the scope of Regulation (EC) No 1347/2000 (…), which was limited to disputes between the parents, and that it took into consideration all judicial decisions relating to parental responsibility and, consequently, to the right of parental responsibility and, consequently, to the right of parental responsibility.which was limited to disputes between the parents, and that it took into consideration all judgments relating to parental responsibility and, consequently, rights ofaccess, irrespective of the capacity of the persons entitled to exercise them and without excluding grandparents.
“It follows from this analysis that the concept of rights of access in Article 1(2)(a) and Article 2(7) and (10) of Regulation No 2201/2003 must be understood as including not only the rights of access of parents to their children, but also those of other persons with whom it is important for the child to maintain personal relations, in particular his or her grandparents, whether or not they have parental responsibility.”
It should also be stressed that, if the rights of access did not extend to all these persons, not only the court to which Regulation No 2201/2003 confers jurisdiction but also other courts which might be considered to have jurisdiction under private international law could decide on questions relating to these rights. In such a case, conflicting, if not irreconcilable, judgments could be rendered, and it could be the case that the rights of access granted to a relative of the child would be contrary to those granted to a person with parental responsibility“.
In conclusion, we can only recall the importance of ensuring that grandparents remain in the lives of children, being a key figure for their development, who, in our opinion, has the full right to defend the grandchildren’s right to relate to them through a visiting regime.
This is recognized in Spanish legislation and now, without any doubt, in European legislation.
In this context, our practice leads us to contrast that every day it is more common for grandparents to go to court to obtain a visitation regime that allows them to maintain this relationship with their grandchildren.
In this sense, the work of family lawyers is essential to mediate and reach a balance where children feel happy with both their parents and grandparents. If you need help in a custody case, contact us.
