The article has been written by Mr. Prashant Indoriya B.A.LLB(HONS), a 4 year student of Prestige Institute of Management Gwalior
Abstract
A right to life not only comprises one’s own life but also life, independence and pleasure of one’s children. To disallow a person the right of company of his children / grandchildren is as brutal a penalty on him as denying him living altogether.
It is a settled principle of law that a separation is always being affected between spouses and never amid parents hence can a child in no case be reprimanded for a wrong he has not committed nor taken part in. Denying a right of having easy access to a minor child towards his paternal side of relatives is like penalizing a minor child for the separation that have occurred between his parents.
It is an inalienable right of every minor child to have free access to his both paternal side of parents, including the Non Custodial Grandparents for an appropriate time so as to develop a bonding, love and affection with his Non Custodial Parental side of the family.
Strangely no legal definition of word Visitation Rights/ Parents and Grandparents is available under any of the provisions of Family Laws practiced and promulgated in Pakistan, however for the purpose of understanding the term Visitation Rights of Grandparents we can resort to the provisions of Section 4 of the Family Laws Ordinance 1961, it is held that Purpose of enacting S.4 in Muslim Family Laws Ordinance, 1961, was to cater the need of grandchildren to remove their sufferings but this provision could not be interpreted in a manner affecting the shares of other descendants in the property in accordance with law of Shariah.
Introduction
Grandparents play an important role in their grandchild’s life. However some grandparents have difficulty seeing their grandchild and spending time with them. They can find themselves excluded from the lives of their grandchildren, and this can be very upsetting for them and for the children involved . This can happen for many reasons, for example , if the relationship between the grandparents and parents has broken down.
Grandparents do not have automatic rights in relation to their grandchildren , but there are steps you can take to improve your level of contract with them.
Applying for custody of a grandchild
Any relative, including a grandparents can apply to their local District Court for custody of a child. Usually, the court will only you custody if it has the parents or guardians consent. However the court c
an dispense with the consent if the custody order is in the child best interests. If you are granted custody your grandchild and they are to live with you, the court can specify of the contract, if any, the child must have with their parents.
As a grandparents , or relative career, you can apply to your local District Court for guardianship if:
1.There is no parent or guardian willing to carry out guardianship responsibilities in respect of the child
- there is no parent or guardianship willing to carry out guardianship responsibilities in respect of the child
You can also apply for guardianship if the child parents die without appointing a guardian in their will. A person can apply for guardianship up until a child reaches the 18 years of age.
Guard parents rights
The court can apply for guardianship if they have provided the day to day care of the child for a continuous period for 12 months or more and where there is no parent or guardian willing or able to exercise guardianship rights and responsibilities in respect of the child.guardparents who take on the full time care of the children in such circumstances are known as kinship careers. The court well decide what guardianship rights a non parent will get. These rights could include any of the guardianship rights granted to a parents.
When parents have parented rights , this usually means they have a right to be a right to be an active participant in their children s lives even if they are not living with the child’s other parent. Unless parents are abusive, neglectful or there is another significant issue, parents typically have the legal right to either have custody of their children or have regular visits with them. Grand[parent rights, on the other hand, are different. Grandparents do not always have an enforceable legal right to see their grandkids. While there are some circumstances in which the grandparents can ask a court to grant them custody , rules vary by state about when and how this occurs.
When can grandparents petition the court for visitation rights?
In some circumstances, grandparents can ask the court to grant them visitation rights. This means the court orders the parents to allow the grandparents time with the grandkids on a regular schedule.
State laws vary to exactly when this is allowed, but typically grandparents may be able to ask for visitation rights in the following circumstances.
- If the parents are separated or divorced
- If one or both parents passed away
- If a petition for divorce has been filed
- If parents have lost custody of the child
- If a child is born out of wedlock
Many states prohibits grandparents from petitioning for visitation when the child lives in an intact family. In other words , if the child is living with both parents, the grandparents typically will not be allowed to sue for visitation rights. The parental rights of the parents and their decision not to allow the grandparents to see the kids take precedence over any rights the grandparents have.
When can grandparents petition the court for custody
In some cases, grandparents may want to go beyond just getting to visit their grandkids. The may actually want to take custody of them. This means assuming the right and responsibility to care for the child and make decision on the child’s behalf.
Grandparents can generally petition for custody only if:
1.They parents are unfit
- the parents have passed away
- the parents agree the grandparents should take custody
The court will consider what is in the best interest of the child when making a custody decision. If children cannot be raised by their parents and their parents have not named a guardian, courts usually prefer to keep children with close family members rather than putting them into the foster care system . this could be grandparents or other close relatives , such as aunts or uncles.
Getting help with a grandparents rights case
If you are thinking about asking the court for grandparents rights, it is best to have an experienced family law attorney represent you. Your attorney can help you to understand whether you have a case and can assist you in gathering the evidence your need to make a compelling claim. Call a family law attorney with you grandkids could be rat stakeouts.
Your guardianship duties
The court will decide the extent of your guardianship rights and responsibilities . you may have the same duties as the child’s parents, or only certain duties. The court can also remove your guardianship rights at a later date if it is in the child’s best interests..
Temporary guardianship
A qualifying guardian may nominate a person including a grandparents to acts as a guardians if the qualifying guardian is unable through serious illness poor injury, to exercise his/her guardianship rights. The nomination must be made in writing and can specify the rights and responsibilities that the nominated person can exercise. The nominate person must than apply to the court for guardianship rights when and if necessary. Each guardian parent and TFSLA, the child and the family agency will be informed of such an application.
Guardianship and wills- Testamentary
All the parents who are guardians and other guardians who have the custody of a child should make a will appointing a guardian to act on their behalf in the event of their death before the child is 18. This is called testamentary guardianship. It is especially important where a parent guardian is a sole guardian. It is especially important where a parent / guardian is a sole guardian. It is a possible for a grandparents to be appointed a testamentary guardian. The testamentary guardian will then act together with the surviving guardian/s. if a parent dies without appointing a guardian in a will it is possible for someone with an interest in a child to apply to the curt to be appointed a guardianship of the child .
Conclusion
Parents still retain most of the exclusive authority over the custody rights of their children . the idea that children are supposed to remain under the care of their parents is strongly ingrained within Indian society. The government mainly intervenes in parent children relationships when the children are likely to suffer from harm. Custody is classified into two categories physical and legal custody. Its during court proceedings where the decision whether to garnet a joint or custody to parents is made, the guiding principle that informs this principle that informs this decision is the welfare of the children and try to ensure that custody is given to someone who has a genuine concern for the guardianship .
REFERENCES
https://www.lawyersclubindia.com/articles/custody-of-a-child-to-grandparents-10188.asp
https://www.legalzoom.com/articles/custody-and-grandparents-rights-heres-what-you-need-to-know
https://www.metlife.com/stories/legal/reasons-grandparents-can-file-for-custody-of-grandchild/
https://www.citizensinformation.ie/en/birth-family-relationships/older-people/grandparents-rights/
https://www.treoir.ie/groups/grandparent/