I don’t see my grandchild, what now?
29 June 2023
As a grandparent, this is undoubtedly heartbreaking.
Do grandparents have a right to see their grandchildren?
Yes, the Civil Code provides a clause for these situations. Article 375 bis (old) C.C. states the following:
“Grandparents have the right to maintain personal contact with the child.
In the absence of an agreement between the parties, the exercise of that right is decided in the interest of the child at the request of the parties or the public prosecutor by the [family court]. [The family court refuses the exercise of the right to personal contact only if the exercise of the right goes against the interest of the child.]”
What does this mean?
According to this law, every grandparent has the right to have contact with their grandchild. This principle is mutual. A grandchild also has the right to continue seeing their grandparents.
A grandparent does not need to prove a special emotional bond with their grandchild to be granted personal contact.
This bond is presumed and even irrebuttably presumed. Grandparents are considered, like parents, as principal individuals entitled to contact.
Any other person who wishes to have contact with a child must be able to demonstrate an emotional bond before a right to contact is granted. The nature of this contact is assessed on a case-by-case basis. This could be, for example, one Wednesday afternoon per month or one Saturday every 3 weeks. Sometimes the court decides that this contact should take place in a neutral visitation facility.
Where and how long this contact should take place depends on various factors such as past contacts, the distance between residences, etc.
Who is considered a grandparent?
Once it is legally established that you are a grandparent, you have the right to this contact. If your son is presumably the father of a child – but this is not certain or not yet established – you cannot invoke this law.
What about adoption?
For grandchildren who are adopted, it is less clear. In a regular adoption, the biological connection with the original family persists, and the grandparents remain legal grandparents. The ‘new’ grandparents through regular adoption do not have a legal biological connection. However, case law suggests that these grandparents can still make use of the right to contact under Article 375bis (old) C.C.
In full adoption, the ties with the original family are legally severed, and the ‘new’ grandparents do gain a legal biological connection. They are thus categorically considered grandparents. The original (biological) grandparents lose their biological connection. However, the Court of Cassation has decided that these grandparents still retain their right to personal contact.
And with step-grandchildren?
Step-grandparents (such as the new partner of the grandparent or the parents of a step-parent) have no legal biological connection. They are not considered principal individuals entitled to contact and must demonstrate an emotional bond with the step-grandchildren.
Does the court always have to grant this contact?
No, the Civil Code has provided for nuance, protecting the child. If the court believes that contact with this grandparent is not in the child’s interest, the court can refuse this contact. Examples could include a significantly negative attitude of the grandparent towards the child that could influence the grandchild. Or a severe addiction or aggression problem that jeopardizes the child’s safety.
It will then be up to the parents (or the guardian) to demonstrate that the contact is not in the child’s interest.
Can the grandchild refuse this contact?
Every minor who has reached the age of 12 has the right to be heard by the Family Court. Children under 12 can request to be heard themselves. The grandparents or parents or even the Public Prosecutor can also make this request. If the request comes from a parent or grandparent, the court may refuse the hearing.
During this hearing of the child, the court has an informal conversation with the minor. The grandchild can express their opinion on the request for contact with the grandparents. It is up to the court to decide whether or not to take the minor’s opinion into account.
How can I, as a grandparent, obtain this right to contact?
If it is not possible to reach an agreement with the parents of the grandchild, the help of third parties may offer a solution.
At De Groote – De Man, we always strive for an amicable settlement in the first instance. In many cases, a joint discussion can lead to a solution. The concrete agreements made are best formalized in a document that is then endorsed in an official judgment.
If sitting down with all parties at the table proves impossible, then the request for contact must be addressed to the Family Court. For this, a petition must be drawn up, explaining the specific situation and request.