Grandparents' visitation rights to see their grandchildren upheld by Spanish Law: analysis of grandparents' legal position and their options.
Grandparents’ visitation rights have been historically forgotten within divorce proceedings: It is probably an obvious error from a human perspective, but Law is often left behind as society moves on.
But Law also moves on: The Supreme Court has decided that neither poor relations nor a lack of any understanding between parents and grandparents can justify denying the grandparents access to their grandchildren. Accordingly, a visitation schedule should be established to provide for contact and communication between the grandparents and the child in the case before the Court despite the poor relations between the mother and grandmother of the child.
The appeal was brought by the grandparents of a child against the decision of the High Court in Seville. The Sevillian court had refused to establish a visitation schedule so that the grandparents could maintain contact with the child on the basis of the young age of the child (three years old) and the poor relationship between the parents and the grandmother of the child.
According to the High Court, ‘the dire relationship between the grandmother and her daughter could have negative repercussions on the development and stability of the child,’ The Court believed that should the relations between the parents and grandparents improve and when the child was somewhat older, that ‘a desirable system of communication between the grandparent and the child could be established’.
Article 160 of the Civil Code
In considering the matter the Supreme Court considered the meaning and extent of Article 160.2 of the Civil Code which states: It is not permitted to impede, unless there be just cause, the interpersonal relationship between a child and his or her grandparents. It therefore becomes necessary to determine exactly what ‘just cause’ means.
According to the Supreme Court, ‘just cause’ does not mean circumstances where the parents and grandparents of the child simply do not maintain good relations. Moreover, it does not mean where there is no understanding or agreement as between the two parties.
The Supreme Court felt that there had been no definite explanation given as to how or why, in the case before it, the child would suffer any negative repercussions as a result of the poor relations between the parents and the grandmother and labelled that argument as merely speculative, in the absence of any demonstration to the contrary.
In this respect the Court did highlight the fact that the right of the grandparents to enjoy contact and communicate with the child could be suspended or limited if any ill will was shown by the child to the mother that could be attributed to the relationship with the grandmother.
Other Court Orders
In another case dealing with similar issues, the Supreme Court dismissed an appeal by a mother of two children and ordered that the children should visit with their grandparents one weekend a month. The order had in fact originated from the High Court in Badajoz which had directed that the children should stay one weekend a month in the home of their deceased father’s parents as well as a week long visit during the holidays each year and a spend time with them each week.
While the Supreme Court stated that it did not consider it appropriate for this measure to be adopted generally, neither could it be rejected indiscriminately.
The mother of the children, appealing the decision of the High Court, argued that it was not necessary to establish obligatory visitation periods as she was already facilitating contact with the family in any case.
On the other hand the grandparents argued that the relationship prior to the death of their son, the children’s father, had been extremely close as they had previously lived above the family workplace.
In this particular case the High Court had approved visitation rights that consisted of two hours weekly, one weekend each month and one week from their holidays each year.
The Supreme Court agreed with the decision of the High Court, reasoning that although it was not the first time that such visitation rights had been awarded to grandparents that it should only be considered with regard to the circumstances of the particular case.
In the particular instance before the Court, the judges decided that the visitation rights that had been awarded by the High Court were reasonably moderate and respected the rights of the mother but also the rights of the children to maintain contact with their paternal family, which is a stabilising and emotionally enriching factor in the children’s upbringing.
After all, grandparents visitation rights can be understood within the context of children rights.