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If the relationship between children and their parents is indeed, and rightly, at the heart of contemporary family law, it is frequently observed that the legal position of grandparents vis-à-vis their grandchildren remains largely unknown. , and continues to be the subject of a misconception that is as false as it is widespread.
Rights of grandparents to maintain relationships with their grandchildren
It is indeed clear that in this matter, the predominant belief that it is the actions of the parents that determine the rights and obligations of their ascendants seems to prevail. Concretely, who has never heard or imagined that grandparents would be forced to stay on good terms with their son or daughter if they wanted to maintain a relationship with their grandchildren? Similarly, who has never heard or imagined that, conversely, grandparents would be responsible for the faults of their children, which could prevent them from continuing to see a grandchild in foster care or oblige to pay alimony instead of the person who is the first debtor?
And yet, some clarifications are necessary because the legal reality is very different! The Civil Code, on the one hand, clearly underlines the importance for a minor to maintain, in a stable and regular manner, relations with his grandparents, and the Court of Cassation, on the other hand, recently came to recall that grandparents are not directly responsible for the consequences of faults committed by their son or daughter in the exercise of their parental authority.
The fundamental principle is set out in the first paragraph of article 371-4. In its current wording, such a text stipulates that:
“The child has the right to maintain personal relations with his ascendants. Only the interest of the child can prevent the exercise of this right. »
It follows that every grandparent has in principle the right to maintain relations with his grandchildren, unless a court decision has been rendered preventing the exercise of such a right on the grounds that it would be contrary to the interests of the child. In other words, the parents do not have an infinite and discretionary power in the choice of the people authorized to be with their child, and the pronouncement of the sole custody for the benefit of the other parent, or the placement in a family of reception, do not lead by themselves to the disappearance of the right. The judges were thus able to recall in particular that a grandparent could not be deprived of the possibility of maintaining links with his grandchildren on the sole ground that his son had been sentenced to a prison term for practicing domestic violence. .
There is therefore an essential principle to remember: grandparents can in principle maintain a relationship with their grandchildren, and the negligence (or even the irresponsibility) of the parent cannot alone cause such a relationship to disappear. LAW.
Non-responsibility of grandparents for parental fault
Although there is, of course, a disconnect between legal theory and the difficulties of reality, insofar as initiating proceedings in the High Court and the use of a lawyer may be dissuasive, if not impossible, it should be kept in mind that knowing the rights you have can help to initiate a dialogue with a recalcitrant parent and that mediation, often favored by family court judges, can allow the parties to reach a compromise more quickly and at lower cost.
Furthermore, if the grandparents are bound, where applicable, by an obligation of support towards their grandchildren, under the combined provisions of Articles 205 and 207 of the Civil Code, this does not mean that they are responsible for the acts of their son or daughter as they were when he was still a minor.
Indeed, the first civil chamber of the Court of Cassation recently recalled ( Civ 1ère, May 28, 2014, n°12-29.803 ) that it did not result from the two previously cited texts, applying in the absence of parents capable of incurring the expenses necessary for the education and maintenance of their children, that grandparents may, as maintenance debtors, “be required to execute the judgments pronounced against their son”.
Damy Lawyers , April 2020
