Supporting grandparent/grandchild contact under the Care of Children Act 2004: an assessment of current options, and a call for change.
DOI:
https://doi.org/10.11157/anzswj-vol29iss3id301Keywords:
contact, access, grandparent, grandchildAbstract
INTRODUCTION: The Care of Children Act 2004 reformed the law of child guardianship in Aotearoa New Zealand. However, it did not result in any special legal standing for grandparents seeking contact with their grandchildren, so as to ensure their continued presence in a grandchild’s life following a relationship breakdown, or where contact is resisted.
METHODS: Non-doctrinal policy law research methods were used to analyse policies that were relied upon during the law’s promulgation, impacts of the law since its enactment, and associated issues that have arisen in its application by practitioners. Litigation to date involving grandparental rights of contact was studied, using Lexis Nexis Westlaw New Zealand, including its family law suite of searchable databases.
FINDINGS: The research revealed a number of processes available under the Care of Children Act and associated family law legislation which may be helpful to grandparents who seek contact with grandchildren. However, none of them resolve the central issue of lack of legal standing, which continues to be an important impediment for grandparents who seek assurance of continuing contact with their grandchildren following family breakdown.
CONCLUSIONS: Examples of law changes which have occurred in other jurisdictions, notably Canada, are offered in support of reform of the Care of Children Act, which would bring Aotearoa New Zealand more in line with other, more progressive countries in its treatment of grandparent/grandchild relationships.
References
Adcox, S. (2016). Grandparents’ visitation rights in Canada. Retrieved from http://grandparents.about.com/od/Grandparents-Rights/tp/Grandparents-Visitation-Rights-In-Canada.htm
Biscoglio, J., & Langer, N. (2011). Grandparents against homework. Educational Gerontology, 25, 109–119.
Birks, S. (2003). Submission to the Justice and Electoral Committee on the Care of Children bill. Retrieved from http://www.massey.ac.nz/~wwcppe/issues/CCBsub.htm
Bronfenbrenner, U. (1975, July). The ecology of human development in retrospect and prospect. Paper presented at the Conference on Ecological Factors in Human Development held by the International Society for the Study of Behavioural Development, Guildford, England.
Butts, D. M., Thang, L. L., & Yeo, A. H. (2012). Policies and programmes supporting intergenerational relations. Retrieved from http://www.un.org/esa/socdev/family/
docs/BP_INTERGENERATIONALSOLIDARITY.pdf
Carson, T. (2010). The legal rights of grandparents. Retrieved from https://www.grownups.co.nz/finance/trusts-asset-protection/terry-carson-grandparents-rights/
Chynoweth, P. (2008). Legal research. In A. Knight & L. Ruddock (Eds.), Advanced research methods in the built environment (pp 28–38). London, UK: John Wiley.
Dellman-Jenkins, M., Blankemeyer, M., & Olesh, M. (2002). Adults in expanded grandparent roles: Considerations for practice, policy and research. Educational Gerontology, 28, 219–235.
Department of Justice. (2002). Grandparent-grandchild access: A legal analysis. Retrieved from http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2003_15/4.html
Dobinson, I., & Johns, F. (2007). Qualitative legal research. In M. McConville & W. H. Chui (Eds.), Research methods for law (pp 16–44). Edinburgh, UK: Edinburgh University Press.
Draper, H. (2013). Grandparents’ entitlements and obligations. Bioethics, 27, 303–316.
Duniform, R. (2013). The influence of grandparents on the lives of children and adolescents. Child Development Perspectives, 7, 55–60.
Dyhrberg, M. (2004). Grandparents and grandchildren rights and responsibility: A New Zealand Perspective. Retrieved from http://www.mariedyhrberg.co.nz/showfile.php?downloadid=422
Families Commission. (2009). Changing roles of grandparents – A quantitative study. Retrieved from http://www.superu.govt.nz/sites/default/files/Changing-roles-of-grandparents.pdf
Giancarlo, C., & Rottmann, K. (2015). Kids come last: The effect of family law involvement in parental alienation. International Journal of Interdisciplinary Social Sciences, 9, 27–42.
Henaghan, M., Atkin, B., Caldwell, J., Clarkson, D., Swadling, K., & Ballantyne, R. (2015). Family law in New Zealand (17th ed.). Wellington, NZ: LexisNexis.
Joseph, J. A. (2001). Constitutional and administrative law in New Zealand. Wellington, NZ: Brookers.
Kara, E., Gibbons, V., Kidd, J., Blundell, R., Turner, K., & Johnstone, W. (2011). Developing a kaupapa Māori framework for Whānau Ora. Retrieved from https://www.researchgate.net/publication/234139430_Developing_a_Kaupapa_Maori_Framework_for_Whanau_Ora
Meyers, J. E., & Perrin, N. (1993). Grandparents affected by parental divorce: A population at risk? Journal of Counselling and Development, 72, 62–66.
Miller, J. (2012). Best interests case practice model. Retrieved from http://www.dhs.vic.gov.au/__data/assets/pdf_file/0008/589643/cyf_best_interests_case_practice_model_summary_guide_09_12.pdf
Ministry of Justice. (2001). Summary analysis of submissions in response to the discussion paper Responsibilities for Children: Especially When Parents Part. Retrieved from https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/archive/2001-summaryofguardianship.pdf
Ministry of Justice. (2017). Care of Children Act 2004: Approved application pack. Retrieved from https://www.justice.govt.nz/family/care-of-children/when-you-dont-agree/disagreements/apply-parenting-order/
Munford, R., & Sanders, J. (2005). Working with families: Strengths-based approaches. In Nash, M., Munford, R., & O’Donoghue, K. (Eds.), Social work theories in action (pp. 158–173). London, UK: Jessica Kingsley.
New Zealand Parliament. (2004a). Care of Children Bill: As reported from the Justice and Electoral Committee. Retrieved from https://www.parliament.nz/resource/en-NZ/47DBSCH_SCR2788_1/57d7cf72946b9a1b9e7468a511ec0f336fc27820
New Zealand Parliament. (2004b). Care of Children Bill: Hansard reading reports. Retrieved from https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/00DBHOH_BILL5507_1/tab/hansard
Ng, S. H., He, A., & Loong, C. (2004). Tri-generational family conversations: Communication accommodations and brokering. British Journal of Social Psychology, 43, 449–464.
Nova Scotia Legislature. (2015). Maintenance and Custody Act. Retrieved from http://nslegislature.ca/legc/statutes/maintenance%20and%20custody.pdf
Ofahengaue Vakalahi, H., Taiapa, J., & Ware, F. (2013). Taonga: Grandchildren the treasures of grandparents. Journal of Cultural Diversity, 20, 114–119.
Pene, G., Peita, M., & Howden-Chapman, P. (2009). Living the Tokelauan way in New Zealand. Social Policy Journal of New Zealand, 35, 79–92.
Ricciuto, T. (2016, December 17). New rights for grandparents. Niagara Falls Review.
Ruiz, S. A., & Silverstein, M. (2007). Relationships with grandparents and the emotional wellbeing of late adolescent and young adult grandchildren. Journal of Social Issues, 63, 793–808.
Sims, M., & Rofail, M. (2014). Grandparents with little or no contact with grandchildren – Impact on grandparents. Journal of Aging Science, 2(1), 1–7.
Statistics New Zealand. (2010). New Zealand childcare survey 2009. Retrieved from http://www.stats.govt.nz/browse_for_stats/people_and_communities/Children/ChildcareSurvey_HOTP2009revised/Commentary.aspx
Statistics New Zealand. (2014). 2013 Census. Retrieved from http://www.stats.govt.nz/Census/2013-census.aspx
Stuart, J., & Jose, P. E. (2014). The protective influence of family connectedness, ethnic identity and ethnic engagement for New Zealand Māori adolescents. Developmental Psychology, 50, 1817–1826.
Templeton, L. (2012). Dilemmas facing grandparents with grandchildren affected by parental substance misuse. Drugs Education, Provision and Policy, 19, 11–18.
Worrall, J. (2009). Grandparents and whanau/extended families raising kin children in Aotearoa/New Zealand. Retrieved from http://www.grg.org.nz/What+we+do/Publications/Research/Research+Report+2009+-+A+view+over+time.html
Wright, V. A., Kepa, M., Keeling, S., Connolly, M., & Dyall, L. (2012). Doing what’s important: Valued activities for older New Zealand Māori and non-Māori. Australasian Journal on Ageing, 31, 241–246.
List of cases
Barker v. Cargill (2007). CIV-2006-463-904 (High Ct).
Eberg v. Bohn-Eberg (2014). FAM-2014-004-744 (Fam Ct).
FJFB v. TW (2015). CIV-2015-485-296 (High Ct).
Ibbott v. Westcott (2015). FAM-2015-088-367 (Fam Ct).
S v. S (2006). FAM-2006-063-181 (Fam Ct).
S-An v. NLN (2011). FAM-2011-041-682 (Fam Ct).
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