Situation
Imagine: you have just become the proud grandparent of your daughter's newborn child. However, the couple split up after the birth and the ex-partner is not exactly the ideal father. Now you fear, should your daughter die prematurely, that the child will not be well taken care of by the father. What options are there for you, as a grandparent, to avoid that the child ends up with the father?
There are three possible routes to consider in this situation, namely: guardianship, foster guardianship and adoption. Below these three options, for grandparents, are explained in concrete terms.
1. Guardianship
With guardianship, someone other than the parents will perform authority over the minor and be responsible for its upbringing. Guardianship will become available when both parents:
- are deceased
- are legally unknown
- are in the constant impossibility to perform parental authority
- are incapacitated
Thus, as long as one parent is alive (and they are not in continuous impossibility or incapacitated), the guardianship will not automatically fall open.
2. Foster guardianship
Besides ordinary guardianship, there is also foster guardianship. Here, a person is given, on a contractual basis, the main parental obligations and some powers of parental authority over a minor.
Foster guardianship therefore is established by an agreement. It can be drawn up by a notary or by the court. However, permission must be given, by the parent(s), for the foster guardianship to be finalised. The foster guardianship takes effect after ratification of the agreement by the family court. Therefore, without the consent of the remaining parent, this is also not a solution to the question outlined.
3. Adoption
There are two types of adoption, regular and full adoption. In regular adoption, the child retains its original kinship with its parents. In full adoption, on the other hand, the child will lose its original kinship completely. In this situation, regular adoption seems the most appropriate.
Both regular and full adoption must always be based on legitimate reasons. In addition, the child's higher interest will always be taken into account.
Adoption by someone the child is related to (such as grandparent, aunt, sister, etc), is possible and not prohibited by law. But case law does say that there must be exceptional circumstances to so radically alter the existing family order.
Thus, grandparent adoption is not prohibited, but it requires exceptional circumstances. A request for grandparent adoption will usually gain more support if it is aimed at perpetuating an existing factual situation (e.g. child often stays with grandparent) and the child's parents are deceased or have not cared for the child for a considerable time. These things can help to obtain the adoption, but it is still the court that will decide whether the lawful reasons are met and whether the adoption is in the child's best interests.
The conditions of adoption must also be taken into account, one of which is the consent requirement. This means that if the child's mother and/or father are still alive, they must consent to the adoption (unless they have been deprived of their right to consent). So, as a grandparent, you will still have to get the consent of the surviving parent to adopt your grandchild. However, this is not necessary if the grandparent can prove that the parent has unreasonably refused consent, ceased to care about the child or endangered the child's health, safety or morality.
Foster Care
A child can also be placed in a foster family when, due to serious reasons or problematic living conditions, it cannot live in its own family.
This can either be at the request of the parent(s) themselves or by a court decision. When it comes to a judicial placement, several attempts will often have been made beforehand to help the parent(s) raise the child, but without positive results.
In foster care, there is the option of network foster care. This means that the child is placed in a family they already know, such as relatives. The form and duration of foster care will depend on the situation. For example, the child may only go to the foster family on weekends, or could have permanent residence there.
Right to personal contact
Grandparents have a right to personal contact with their grandchildren. This is laid down in Article 375bis old Civil Code, since the 2018 amendment to the law, and can be enforced through the family court.
If someone wants to oppose the visitation arrangement between the grandparent and the grandchild, they have to prove that it is contrary to the best interests of the child.
The details of this personal contact are decided by the court and will vary depending on the situation. This can range from monthly visits (accompanied and supervised or not) to overnight stays, depending on the bond between the grandparent and the child.
Children from the age of 12 can also share their own views regarding seeing their grandparent(s) through the hearing right.
Conclusion
Gaining authority over your grandchild is thus not that simple. As long as one parent is still alive, the child will, almost always, end up with that parent.
Of the three options listed, foster guardianship has the highest chance of success. Once there is an agreement between you and the surviving parent, it only needs to be put in writing and ratified by the court.
With guardianship and adoption, there are several conditions and steps to go through. As well, you will often have to ‘attack’ the surviving parent to obtain this, which can make already bad ties even worse.
Either way, the child is the most important factor in this situation. Think carefully and only make decisions in the child's favour and interest. Always try to talk and settle something between yourself and the surviving parent first, only take further steps when there is no other option left.
Contact Wanted Law.
Do you have further questions regarding guardianship, foster guardianship or adoption? Or would you like to know which option is best suited for your personal situation?