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Grandparents and the Law

by Dr Graziella Cricchiola – Junior Associate

The role of grandparents was discussed by the Maltese courts; they noted that grandparents play a pivotal role in the development of their grandchildren, especially in scenarios where the parents, due to several social difficulties, cannot cater for the specific needs of their own children. In fact our Courts, through various judgements referred to the role of grandparents in the upbringing of their grandchildren as a point of stability.

To put things into context, in the case of AB vs CB decided on the 17th May, 2013, the Civil Court (Family Section) in relation to the role of grandparents emphasized that “…l-Qorti hija tal-fehma li dawn in-nanniet huma l-istrument ta’ kif l-ghaqda bejn il- genitur u l-minuri tista’ tkompli tikber u tissahhah ghalhekk hija mhegga.”

The quality of the relationship between grandparent and grandchildren is heavily influenced by the quality of the relationship between parents and grandparents. This relationship would become further complicated in marital breakdown where access to grandchildren would be limited if not precluded. Whilst acknowledging the important role of grandparents in the upbringing of children, grandparents to date, are endowed with few or no legal recognition. By way of an example, in the cases of separation or divorce, in the absence of any agreement, grandparents would not enjoy any rights over their grandchildren according to law.

Contrastingly, France and Quebec law, grant grandparents access rights to their grandchildren provided that such access rights is beneficial and in the best interest of the grandchildren. However, as of yet, despite the fact that in our Courts understand the bond between the grandparents and their grandchildren and understand that often such bond is beneficial to the children, when considering custody and access rights in separation proceedings, have no legitimate power to grant any rights to the grandparents.

In peculiar situations, whilst granting grandparents the recognition they deserve, our Courts have ordered the parents to exercise their access rights under the supervision of a grandparent or else in the residential home of a particular grandparent. On other seldom occasions grandparents are vested with this care and custody instead of the actual parents. This is usually the case where both parents are unfit parents due to any social difficulties and addictions, when the parents have in the past lost interest in their own children and disregarded their well-being or in cases where the grandparents are the primary caretakers. In these situations, grandparents are more likely to feel compelled to provide comfort and protection to their grandchildren. Many researchers on this point reveal that parent’s mental, drug or alcohol abuse are generally the motive why grandparents raise their grandchildren.

An interesting case, regarding this matter was decided on the 30th March 2011 in the names, A B vs C et. In this particular case our Courts, after considering the best interests of the children granted maternal grandparents complete care and custody over the children. The Court have also ruled that the natural father was precluded from having any contact with the minor.

For this reason, it is peculiar that whereas various institutions recognize the role of responsibility which grandparents play in the development of children, as of yet, grandparents have to rely on the buona grazia of our Courts in order to pursue their relationship with their grandchildren. It is the personal opinion of the author that this should certainly not be the case and further legislative interventions are required so as to crystallize the granting of rights which grandparents should continue to enjoy over their grandchildren.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Graziella Cricchiola on graziella@abalegal.eu.