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You Be the Judge: Should Grandmother Be Included in Kid’s Custody Award? (Part 1)

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You Be the Judge: Should Grandmother Be Included in Kid’s Custody Award? (Part 1)

This is the first in a two-part Blog.

Custody battles are difficult enough when they are fought by the parents, but as I have written in a past Blogs grandparents may also have rights in relation to access (or even custody) of children of separation of divorce.

But even when the grandparents are not themselves asking for access, an interesting question arises: When making a custody determination between the parents, should courts take into account the role, participation and influence of the children’s respective grandparents? And should a grandparent be included in a custody award even over the objection of one of the parents?

This week’s Blog will give my readers a chance to answer that question themselves and play “amateur family lawyer”.
Consider the facts in the recent case of McGlade v Henry, where the young parents – who at age 19 had met online and immediately conceived a child – were fighting for custody of their now four-year-old autistic boy. The boy’s 45-year-old paternal grandmother also joined the court battle; she and her son (i.e. the boy’s father) wanted to share joint custody with the boy’s mother.

The court heard evidence of the significant extent to which the grandmother – who refused to let her son “run from his responsibilities” — had been involved right from the beginning in helping the inexperienced young parents’ raise their child. She gave both parents extensive financial and parenting support, and generously continued to help the boy’s mother even after they separated. (Which split, incidentally, was prompted by the boy’s father sending the mother a break-up text while she was away with the 3-week old boy visiting family. A second, final break-up was instigated by the boy’s father via Facebook message).

Indeed, throughout the four years of the boy’s life, the grandmother played a major role in his upbringing: She provided almost full-time babysitting, and encouraged and paid for the mother to go to school and find suitable employment. She furnished and bought / rented several suitable homes for the mother and boy to live in, paid the utility bills, and purchased groceries and baby supplies. During some periods she also gave the mother a monthly stipend of up to $500 for her expenses, and provided her with a car and cellphone. On one occasion, she gave her a $5,000 lump sum to “treat herself”. She also paid the boy’s school fees, liaised with his teachers, and took care of his medical and other needs.

However, there was routine friction in the relationship between the two women, and at one point the grandmother successfully obtained a court order for temporary custody of the boy. Eventually the parties ended up in court to resolve competing claims between the mother on the one hand, and the grandmother and father on the other.

The mother based her claim for sole custody on the feeling that the grandmother was too involved in the boy’s life, and that the boy’s father had abdicated his child-rearing and decision-making responsibilities about the child to her. As the court described it:

[The mother] believes that her proper role as [the boy’s] mother is inappropriately suppressed by [the grandmother’s] overwhelming directive influence over [the boy’s] life. [The mother] suggests that she needs sole custody or she will always give in to [the grandmother’s] views because she does not have the mental, physical, or financial resources to oppose [the grandmother’s] who always gets her way.

[The mother] wants peace and no arguing. She says she is afraid to make suggestions because an argument will start with [the grandmother]. She believes that joint custody will result in endless court actions and that sole custody is the only way to avoid every issue becoming a dispute with [the mother] …

In short, she believes that neither [the father] nor [the grandmother] support her role as [the boy’s] mother.
In terms of her desire to provide the boy with his primary residence, the court described the mother’s position this way:

[The mother] testified that she understood that it was initially difficult for [the boy] to leave [the grandmother] (with whom he frequently travels internationally, and who, according to [the mother] gives him anything he wants, including his own pony and any toy he points out while in a store) to live with [the mother] (who is a student, working part-time, and supported by Ontario Works), but she persevered in adjusting his expectations.

From a legal perspective, the court was asked to examine the best interests of the boy against the background of various factors and interests, giving rise to two competing scenarios:

• Should the claim for sole custody by the mother – who was his biological parent – trump any competing joint custody claim by anyone else, including the grandmother?

• Or should the grandmother (and notionally, the boy’s father) be part of a joint custody awarded in favour of all three of them?

How do you think the court ruled this case? Should the court consider the grandmother’s intensive involvement as a mature and reliable caregiver for the boy, in making its custody award?

Find out in the next Blog later this week.

For the full text of the decision, see:

McGlade v Henry, 2015 ONSC 3036 (CanLII)

 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.