Many grandparents are uncertain about the meaning of legal terms such as custody or guardianship and are unclear about the rights and obligations associated with each term. This post is intended to provide an overview of some of the key terms relating to guardianship of grandchildren.
Grandparents are often highly involved in their grandchildren’s lives and may in some cases raise their grandchildren. In my years of practice as a family lawyer, I have successfully represented grandparents in obtaining custody, guardianship, and access with their grandchildren, and have also assisted with grandparents’ adoption. If you need more information or have questions about how BC law applies to your unique family circumstances, please contact Valerie M. Little Family Law Corporation today by calling 604-526-3333.
What is guardianship?
Guardianship is a term under BC’s Family Law Act that refers to the person or people who have “parental responsibilities” which must be exercised in the best interests of the child. A guardian is
responsible for the care and upbringing of a child and ensuring that their needs are meet. Guardians also have the legal right to make important decisions for the children in their care, ranging from choosing what school the child will attend and what kind of medical care they will receive.
How does a grandparent become a guardian?
BC’s Family Law Act does not permit a grandparent to be appointed as guardian by way of an agreement, even if the agreement is with the child’s parents. A grandparent who wants to be appointed as a guardian of a grandchild must apply to court to be appointed.
How do I bring an application to become my grandchild’s guardian?
Applications for appointment as guardian are made under section 51 of BC’s Family Law Act. To be appointed guardian of a grandchild by the courts, a grandparent must file an application in either Provincial or Supreme Court. Section 52 of BC’s Family Law Act requires notice of the guardianship application be given to the child’s
parents and to any adult who usually lives with or cares for the child. The application must include a special affidavit with detailed evidence including the plan for care of the child and copies of background and criminal record checks. It is highly recommended that you make an appointment for guidance from an experienced family lawyer if you are considering applying to be appointed as guardian of your grandchild.
Does my grandchild have to consent?
If your grandchild is 12 years old or older, the court will not appoint you as guardian unless your grandchild consents by way of written approval to the court. That being said, the courts do retain the
power to appoint a guardian without the consent of the child if the court is satisfied that it is in the child’s best interests to do so.
For How long does a Guardianship Order last?
A Guardianship Order can be a temporary order ( interim pending the trial) or a Final Order. If it is a Final Order, the legal rights and responsibilities of guardianship end when the child reaches the age of 19. Regardless of whether the Guardianship Order is temporary or final, is important to note that a parent or another relative can apply to the court to terminate guardianship of a child if there has been a significant change in circumstances since the Order was made.
Is grandparent guardianship the same as grandparents’ adoption?
Grandparents can legally adopt their grandchildren, but there are important distinctions between grandparents’ having legally obtained adoption of their grandchildren and grandparents having legally obtained guardianship of their grandchildren. When you adopt a grandchild, you become the legal parent of the child in place of the child’s birth parents, and you obtain all the same rights and responsibilities as a birth parent, including guardianship. Unlike adoption, guardianship does not sever the child's parental rights in relation to the child. In addition, guardianship does not give rise to a claim to inheriting their guardian's estate.
Schedule an appointment with an experienced BC family lawyer
If you are a grandparent wishing to apply for legal guardianship or adoption of your grandchildren, and have questions regarding the process, please contact Valerie M. Little Family Law Corporation today by calling 604-526-3333. Valerie M. Little has over 30 years of experience as a family lawyer and her practice covers all areas of family law including advice on grandparents obtaining access to their grandchildren, grandparents obtaining guardianship of their grandchildren and grandparents obtaining adoption orders for their grandchildren. Make an appointment for your initial consultation so that you can discuss the legal options available to you and that may be best for your family.