For the first time in 23 days, Jenelle and David get to see their children since Barbara brought them back on June 4. Recently, the court removed Jenelle’s kids from her custody after a judge decided the kids’ safety was at risk after David allegedly killed the family dog.
Jennelle Evans and David Eason appeared in court on Thursday in Whiteville, North Carolina for a brief court-monitored reunion with their children. Jenelle’s mom, Barbara, separately arrived with the children shortly before their parents appeared. Jenelle and David have been working with the judge to regain custody.
Section 21(1) of the Children’s Law Reform Act gives grandparents the right to make a claim for custody or access. In Ontario, grandparents can gain access to their grandchildren in certain circumstances. The following questions must be answered before a judge will decide whether grandparents will be awarded access:
- Does the grandparent share a close emotional connection with the child?
- Have the parents made decisions that impede the grandparent-child relationship?
- Are the parent’s actions random or unreasonable?
A grandparent may be granted custody or access if the answer to all three questions is yes. However, parental discretion is normally respected.
To answer question 1 affirmatively, the relationship between the child and the grandparent must be very strong. For example, the court may determine that there is a close emotional connection if the grandparent drops off and picks up the child from school every day and cares for the child until the late evening. However, the answer may be no if the child simply enjoys visiting his grandparents once a week.
In the case of Barber v Mangal, Justice Brownstone highlighted two situations that will likely satisfy question 1:
- If the child has lived with their grandparent or spent a significant amount of time in their care
- If a parent has passed away and an order will maintain the child’s relationship with the other side of the family
Furthermore, a parent should not prevent their child from forming a meaningful relationship with their grandparent unless there is an apparent reason to do so.
According to the Section 42, subsection 2 of the Children’s Law Reform Act, the court will analyze the following factors regarding the best interest of the child:
- "(a) the love, affection and emotional ties between the child and,
- (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
- (ii) other members of the child’s family who reside with the child, and
- (iii) persons involved in the child’s care and upbringing;
- (b) the child’s views and preferences, if they can reasonably be ascertained;
- (c) the length of time the child has lived in a stable home environment;
- (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
- (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
- (f) the permanence and stability of the family unit with which it is proposed that the child will live;
- (g) the ability of each person applying for custody of or access to the child to act as a parent; and
- (h) any familial relationship between the child and each person who is a party to the application."
With regard for these factors, the court will determine if grandparent access or custody is in the best interest of the child. Furthermore, grandparents do not have an automatic right to custody or access. However, they can argue that an order is appropriate given the circumstances at play.
According to R(M) v L(A), the court must consider each custody and access claim holistically with due regard for the child’s needs. Therefore, no factor is completely determinative. Instead, the judge will analyze the facts of each case and determine the most appropriate course of action.
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