Grandparents’ right to visit their grandchildren

As seen in the previous article “Family life: a right for all!” , it is important to preserve the right of children of divorced parents to live with both for their healthy development. We also note that the right to coexistence is not restricted to parents, covering other family members (grandparents, uncles, stepfathers, etc.).

It may seem strange, but there are many cases in which parents (or just one of them) prohibit contact between grandparents and their grandchildren. This usually occurs when there are disagreements between the parents-in-law and the daughters-in-law or sons-in-law, for the most varied reasons (patrimonial disputes, enmity, troubled divorce, etc.), or even when the children (the child’s parents) disagree with their own parents ( grandparents).

And when that happens, how is the situation of grandparents and grandchildren? Can they get visitation rights in court?

Until recently, only parents had the express right in law to live with their children, and when the grandfather went to court asking for the regulation of visits to his grandson, the regulation of contacts depended solely and exclusively on the judge’s personal understanding.

It so happens that, as of 2011, this right of grandparents to visit their grandchildren was guaranteed by law (Law 12,398 /11), when a single paragraph was included in art. 1589 of the Civil Code , which says:

Art. 1,589. The father or mother, in whose custody the children are not, may visit them and have them with them, according to what is agreed with the other spouse, or is determined by the judge, as well as supervise their maintenance and education. Single paragraph. Visitation rights extend to any of the grandparents, at the discretion of the judge, observing the interests of the child or adolescent.

Maria Berenice DIAS1 observes that, although the law only guaranteed the right of grandparents in 2011, the right to family life, provided for in the Federal Constitution , would already authorize the regulation of visits with other family members besides the parents, although without express provision in law:

When the Constitution ( CF 227) and the ECA guarantee the right to family life, no limits are established. As parental ties go further, not ending between parents and children, the right to coexistence extends to grandparents and all other relatives, including collateral ones, In addition to the right of children and adolescents to enjoy the company of their family members, there are also the right of grandparents to live together with their grandchildren.

However, it is true that this change in the law came with the aim of benefiting children and adolescents, being one more way to guarantee the maintenance of affective ties with other family members, even with the separation or divorce of their parents.

It is important to say that the coexistence between grandparents and grandchildren is of fundamental importance for the healthy growth of children, and can be considered a “moral right” of grandparents, who wish to provide assistance, affection and affection to their grandchildren.

Rolf MADALENO explains that contact with grandparents can also benefit grandchildren when they are facing situations of parental conflict (for example, when parents are in the process of divorce).

This is because grandparents are usually far from the couple’s problems and, thus, “can provide even more relevant assistance to help their grandchildren rationalize the family conflicts they are going through and which will always be very difficult for them to understand without outside help, providing minors with safety and stability references”2.

In this way, if the coexistence of the grandparents with the grandchildren is being prevented by both or by just one of the parents, for no apparent reason, they can file a lawsuit in court to have their visitation rights regulated, even to preserve the rights of the minors involved.

We point out that each case is different and will be analyzed by the Judiciary according to its particularities, not least because the visits of the grandparents are different from the visits of the parents (that is, they will be defined using different criteria and, generally, in longer periods). short), as well as why these encounters should be beneficial and not imposed in a way that harms the children/grandchildren.

Finally, it should be clarified that this right of visitation for grandparents, although it is relevant, has nothing to do with family power (which is exclusive to parents), since it is a right limited only to living with grandchildren, not it can be extended or even confused with the right to supervise and participate in the upbringing of children, resulting from parental authority.

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