Grandparents and the law

The short answer

Grandparents do not have an automatic right to see their grandchildren in Canada or the US. Parents usually decide. But in Canada a grandparent can ask a court for a contact order, sometimes needing the court's permission first, and the judge decides based on the child's best interests. In the US, the Supreme Court has said judges must give special weight to a fit parent's decision, and each state sets its own rules. Talking, mediation and a written plan come first; court is the last step.

Separation often reshapes a child's whole family, not just the parents' relationship. Sometimes a grandparent who used to do school pickup every Thursday suddenly hears nothing. Sometimes a parent has good reasons for limiting contact. Sometimes it is just conflict that has spread.

This guide explains what the law says when a grandparent wants time with a grandchild and a parent says no: what rights exist, how courts decide, and what to try before anyone files anything. It is written for both sides, because the test a court applies is the same either way: what is best for the child. It is general information, not legal advice; the rules differ by province and state, so confirm the position with a family lawyer where the child lives.

For the relationship side of this, without the law, see grandparents and extended family after separation.

The starting point: parents decide

Steps to Justice, the Ontario public legal information site, puts it plainly: parents usually decide who their children spend time with, and that includes grandparents. There is no automatic legal right for a grandparent to visits. But a grandparent who is refused can apply to court for a contact order, and a judge can make one if it is in the child's best interests.

Family Law in BC, the Justice Education Society's site, frames it from the child's side: if a relationship with grandparents is in the children's best interests, the law says the children have a right to keep it. It adds two cautions. Courts usually do not want to interfere with the rights and responsibilities of parents raising their children. And if a grandparent does not get along with the parents, a court might decide contact is not in the child's interests at all.

How courts in Canada decide

The best interests test

Under the federal Divorce Act, the court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. Among the listed factors is the nature and strength of the child's relationship with each parent, siblings and grandparents, and anyone else who plays an important role in the child's life. Provincial laws use similar tests.

Steps to Justice describes what a judge in Ontario typically looks at in a grandparent case:

whether there is a strong, positive relationship between grandparent and child;
whether the grandparent has been a caregiver, or the child has lived with them;
whether the grandparent has acted in the child's best interests, or is making unfair demands;
whether the grandparent is likely to play a positive role in the child's life;
why the parent does not want contact, and how the parent plans to keep the child in touch;
in some cases, the child's own views.

Divorce cases: permission first

If the parents are divorcing, a grandparent can apply for a contact order under section 16.5 of the Divorce Act, but only with leave (permission) of the court. In deciding whether to make the order, the court must consider whether contact could happen anyway, for example during one parent's parenting time. That point matters in practice: if the children's father already brings them to his parents every other Sunday, a separate order may not be needed. A contact order can provide for visits or any form of communication, and can be supervised. Steps to Justice notes that outside a divorce case, Ontario grandparents can usually apply without first getting permission.

British Columbia

Section 59 of BC's Family Law Act lets a court grant contact to any person who is not a guardian, and names grandparents expressly. Family Law in BC says most grandparents apply in Provincial Court; if the parents are divorcing, a grandparent can apply in Supreme Court within the divorce, but needs the court's permission first. Even with an order, a grandparent does not get the same rights as a parent about how often and how long visits last. Becoming a child's guardian is a separate, larger step that always needs a court order in BC.

Alberta

Alberta's Family Law Act sets a clear rule. Most people who are not parents need the court's permission to apply for contact. A grandparent does not, if the parents are the child's guardians and are living separate and apart (or one has died), and the separation or death interrupted the grandparent's contact. When permission is needed, the court looks at the significance of the relationship and whether an order is necessary. Before any contact order, the court must be satisfied it is in the child's best interests, including whether the child's health may be put at risk if contact is denied and whether the parents' refusal is unreasonable.

Other provinces, including Quebec, have their own rules. Check your provincial guide and speak to a lawyer there.

In the United States: a higher bar

US grandparents face a constitutional limit. In Troxel v. Granville (2000), the US Supreme Court struck down the application of a very broad Washington visitation law to a fit mother who had limited, not cut off, the grandparents' visits. The plurality opinion said there is a presumption that fit parents act in their children's best interests, and that if a court reviews a fit parent's decision it must give at least some special weight to the parent's own view. The Court did not decide whether every state must require proof of harm to the child. At the time, a footnote noted, all 50 states had grandparent visitation statutes in some form.

California's Family Code section 3104 shows how a state applies this. A court can grant reasonable visitation if it finds a pre-existing relationship that has created a bond making visitation in the child's best interest, and balances that against the parents' authority. A grandparent generally cannot petition while the parents are married unless, for example, they are living apart or one parent joins the petition. If both parents agree the grandparent should not have visitation, the law presumes visitation is not in the child's best interest, and the grandparent must overcome that. Other states differ a lot, so get advice from a family lawyer in the child's state.

What to try before court

Court is slow, expensive and hard on families. The Divorce Act itself says that, where appropriate, parties should try to resolve matters through a family dispute resolution process. Steps to Justice suggests starting with a conversation and, if that is not safe or not working, help from a mediator, social worker or lawyer.

If you are the grandparent

Ask what the concern is, and listen. Often the issue is something specific: comments about the other parent, ignored bedtimes, a new partner.
Offer something small and concrete, such as a monthly visit or a weekly video call, rather than "the way things were".
Stay neutral. Courts look at whether a grandparent supports the child's relationship with both parents. Taking sides with your own child against the other parent is the fastest way to lose contact.

"We miss the children and we want to support you both. Could we start with a call on Sundays and see how it goes? If there is something we have been doing that worries you, we would rather hear it."

"You have no right to keep them from us. We will see you in court."

If you are the parent

Separate your feelings about the grandparent from the child's relationship with them. Steps to Justice says it directly: not liking the grandparents does not mean your child should not see them.
Put concerns in specific terms and propose conditions instead of a flat no, such as visits at your home at first.
Keep the child out of it, and do not speak badly of grandparents in front of them.

If it may end up in court

Judges look at the actual relationship, so records help more than strong feelings. A grandparent can keep a simple, factual note of past involvement: regular care, school pickups, holidays together, calls since contact stopped, and every reasonable offer made to the parents. A parent can do the same for specific concerns. Keep it calm and dated; it is far more useful to a lawyer or mediator than a long letter about who is to blame.

Whatever you agree, write it down. A parenting plan can include grandparent time, calls and holidays. FairWell's Parenting Plan Builder has space for extended family, and the directory lists mediators who can help you reach it.

When to get professional help

Contact has been cut off for months and talking has not worked.
You have been the child's caregiver or the child has lived with you.
You are a parent served with a grandparent's application, or a request for leave.
There are safety concerns on either side. Mediation may not be suitable, and a lawyer can advise on supervised contact.

This guide is general information, not legal advice. Family law differs by province and state and changes over time. Confirm the position with a lawyer where the child lives before relying on it.

Sources

Common questions

Do grandparents have an automatic right to see their grandchildren?

No, not in Canada or the US. Parents usually decide who their children spend time with. A grandparent who is refused can ask a court for a contact order (or visitation in the US), and the court decides based on the child's best interests.

Do grandparents need the court's permission to apply?

Sometimes. Under the Divorce Act, a grandparent needs leave of the court to apply for contact in a divorce case. Alberta exempts grandparents whose contact was interrupted by the parents' separation. Ontario grandparents can usually apply without permission outside a divorce case. Rules vary, so check locally.

What do judges look at in a grandparent case?

The child's safety and well-being come first. Judges look at how strong and positive the relationship is, whether the grandparent has been a caregiver, why the parent objects, whether contact can happen during a parent's time anyway, and sometimes the child's views.

Is it harder for grandparents in the US?

Generally, yes. Since Troxel v. Granville, courts must give special weight to a fit parent's decision. States set their own conditions; California, for example, presumes visitation is not in the child's best interest if both parents agree to refuse it.

What should we try before going to court?

A direct conversation if it is safe, then mediation. Offer something specific and small, stay neutral between the parents, and put any agreement into a written parenting plan.

Make room for grandparents in the plan

The Parenting Plan Builder lets you set out time and calls with grandparents and extended family alongside the main schedule, so everyone knows what to expect and children are not caught in the middle.

Build a parenting plan

This guide is general information for parents, not medical, psychological or legal advice. It draws on published research and guidance from recognised health and family justice bodies, listed under Sources. Every child and family is different. If you are worried about your child or yourself, talk to your family doctor or a qualified professional. FairWell can help you find one through the professional directory. How we write and check our guides.