What happens in case of disagreement between parents and grandparents?
When a separation, a family conflict or the death of a parent deprives grandparents of all contact with their grandchildren, they can apply to the Family Court to assert their right to personal relationships.
Unlike other third parties (godparents, step-parents), grandparents do not have to demonstrate a particular reason: their right is presumed.
The court can only refuse this right if its exercise is contrary to the child's best interests:
- danger for the child (violence, abuse, serious psychiatric disorders)
- demonstrated harmful family conflict
- clear and reasoned wish of a child of discernment age
Article 375bis treats grandparents differently from other relatives. Grandparents have the right, with no condition attached. Any other person may be granted it only if they show a particular bond of affection with the child. Grandparents therefore have nothing to demonstrate; it is the refusal that must be justified.
The wording of refusal is restrictive, and it is recent. Since an amendment in force on 12 July 2018, the text states that the court refuses the exercise of the right to personal relations only where it is contrary to the child's interests. Refusal therefore presupposes an established conflict with the child's interests.
The same article carries a related right. Since 19 June 2021 it provides that all brothers and sisters have, at any age, the right to maintain personal relations with one another. Where a separation or a placement takes children away from each other, that right exists and may be invoked on the same footing as the grandparents' right, and in the same proceedings.
Finally, the court may be seized at the request of the parties or of the public prosecutor. Grandparents are therefore not the only ones who can put the question before a judge.
What arrangements can be ordered?
- Weekend visits (e.g. one Saturday per month)
- School holidays (week or half-week)
- Regular phone / video calls
- Gifts and correspondence
The court adapts the arrangements to the child's age, geographical distance, the quality of the pre-existing relationship.
Procedure
1. Family mediation attempt (often recommended by the judge before hearing)
2. Summons or petition before the Family Court
3. Hearing of the child: from the age of 12, the judge informs the child, by means of a form, of their right to be heard; the child remains free to accept or to refuse. Before the age of 12, the child is heard at their own request, at the request of the parties or of the public prosecutor, or of the court's own motion.
4. Judgment setting the arrangements
Article 1253ter/1 of the Judicial Code places a duty to inform on the registry: as soon as a claim is brought before the family court, the clerk sends the parties the text of articles 1730 to 1737, an information brochure on mediation, and the list of accredited family mediators in the judicial district.
The claim is deemed urgent by law. Article 1253ter/4 places the residence and right to personal relations with a minor child among the matters deemed urgent: urgency does not have to be demonstrated, it is established. Such matters may be brought by inter partes petition, by writ, or by joint petition, the petition being the simplest route where relations are already strained.
Hearing the child, step 3, is not automatic. Article 1004/1 of the Judicial Code gives every minor the right to be heard in matters concerning them, and states that the minor has the right to refuse to be heard. From the age of twelve, what is systematic is the information: the judge informs the child of that right and attaches a reply form to it. Before the age of twelve, the child is heard at their own request, at the request of the parties or of the public prosecutor, or of the court's own motion. The interview does not make the child a party to the proceedings.
How Sarah Satti can help you
- Strategic advice (mediation vs proceedings)
- Drafting of the petition to the Family Court
- Representation at the hearing
- Request for subsequent modification if necessary
- Appeal in case of non-enforcement of the judgment
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Where a judgment exists but is not respected, the law opens a route of its own.
Article 387ter of the former Civil Code governs that situation. Where a parent refuses to comply with a decision concerning the right to personal relations, the case may be brought back before the family court already seized, without any need to start a full procedure again. And the text adds that the judge rules as a matter of priority over all other business: the case goes first.
The judge then has several levers. A penalty payment may be imposed, a sum owed for each breach, intended to secure compliance with the decision. The judge may also authorise the aggrieved party to resort to enforcement measures, determining their nature and terms having regard to the child's interests, and appointing where necessary the persons authorised to accompany the bailiff. The decision is enforceable notwithstanding appeal by operation of law.
