Can Grandparents Apply for Custody or Access in Newfoundland and Labrador?

You may be a grandparent who has lost contact with a grandchild. You may be a step-parent or relative who has been raising a child, or who wants to. Either way, you probably want to know whether the law lets you ask a court for a say.

In Newfoundland and Labrador, a grandparent is among the people the law allows to apply, and the court focuses on the child rather than on the adult's wishes. This article explains who can apply, how the court decides, where the application goes, and what options exist outside court.

This article covers the law of Newfoundland and Labrador.

Who is allowed to apply

Under the Children's Law Act, a parent can apply to a court for an order about custody, access or an aspect of custody. So can certain other people listed in section 69(4) of the Act.

Those other people include the following:

• A grandparent.
• A person with a settled intention to treat the child as a member of their family.
• A person with actual care of the child.

This means a step-parent, aunt, uncle or family friend may qualify, depending on the facts. Being allowed to apply does not mean the application will succeed. It only means the court will hear it.

How the court decides: the child's best interests

Custody and access applications are decided on the best interests of the child. The Act lists factors the court looks at, including:

• The child's emotional ties.
• The child's views, where they can reasonably be ascertained.
• The time the child has spent in a stable home.
• Each applicant's ability to act as a parent.
• The proposed plans for the child's upbringing.
• The permanence and stability of the proposed home.

The court must also consider any violence by a person toward a spouse, child or household member. If safety is a concern in your situation, raise it early with a lawyer.

Parents start from a different place than other applicants. The father and mother of a child are equally entitled to custody, subject to the other provisions of Part III of the Act. A grandparent or other relative is listed separately as a person who may apply, and the court decides that application on the child's best interests.

What access includes

Access is more than visits. Under the Act, it includes the right to visit the child and the right to receive information about the child's health, education and welfare.

Custody is different. A person with custody has parental rights and responsibilities and must use them in the child's best interests. Many grandparents ask only for access, which is often a more modest request than custody.

Which court hears the application

Under the Children's Law Act, 'court' means the Trial Division or the Provincial Court. In a judicial area designated under the Judicature Act, it means the Trial Division, Family Division. Where you live matters:

In areas where the Family Division does not operate, the General Division of the Supreme Court also exercises jurisdiction over some family matters.

Changes to the areas the Family Division covers have been proposed but are not yet in force. Which court serves your area depends on where you live, so it is worth confirming with the court or a lawyer before you file.

A warning about the parents' divorce

If the child's married parents start a divorce proceeding under the Divorce Act, a custody or access application under the Children's Law Act is stayed unless the court grants leave. Parenting issues between the married spouses are then decided under the Divorce Act.

If you already have an application underway, or plan to file one while the parents are divorcing, ask a lawyer how to protect your position and whether you need to ask for leave.

Options outside court and next steps

Family Justice Services (FJS) is a division of the Supreme Court that helps families resolve parenting and child support issues outside the courtroom. It offers mediation and parent education sessions, is free, and does not provide legal advice. Both parties can sign and submit a Request for Service to the nearest FJS office.

The FJS Parent Information Program is a group session called 'Living Apart…Parenting Together'. Attendance is mandatory for parents involved in family court applications. Parents not going to court are encouraged to attend. The format has been described both as an in-person group session and as an online course, so confirm the current format and registration with your regional FJS office.

If you have started a custody or access application, a court can also appoint a mediator the parties choose, at the parties' request. The parties pay the mediator's fees, and the court allocates the shares.

• Write down your relationship to the child and how long you have cared for or seen them.
• Gather records of past contact, caregiving, school or medical involvement.
• Note any safety concerns, including violence.
• Find out which court serves your area.
• Contact your regional FJS office about mediation.
• Speak with a family lawyer before filing.

Frequently asked questions