The recent Supreme Court ruling dated June 27, 2024 analyzes the right of grandparents to maintain a visitation regime with their grandchildren when the latter already have a visitation regime with the parent.
In this specific case, the paternal grandmother, who lived with the minor’s father, requested the court for her own visitation regime, basing this request on the fact that the visitation regime assigned to the father was insufficient to maintain a stable and meaningful relationship with her grandson. . In this sense, the High Court has tried to balance the right of the grandmother and the best interests of the child, a fundamental principle in Family Law.
Factual background
In the first instance, the court rejected the grandmother’s request. He argued that, because the child already saw the grandmother during the father’s custody periods, a specific visitation regime was not necessary.
However, the Provincial Court partially upheld the appeal filed by the grandmother and decided to extend the father’s visitation regime to include more time of coexistence between the minor and his grandmother, considering that this would benefit the child. The appeal: interpretation of article 160 of the Civil Code and the best interests of the minor.
Given the resolution of the Provincial Court, an appeal was filed, alleging a violation of article 160 of the Civil Code: “The personal relationships of the minor with his siblings, grandparents and other relatives and friends may not be prevented without just cause.
In case of opposition, the Judge, at the request of the minor, siblings, grandparents, relatives or close friends, will resolve based on the circumstances. In particular, it must ensure that the measures that may be established to promote relationships between siblings, and between grandparents and grandchildren, do not authorize the violation of judicial resolutions that restrict or suspend the relationships of minors with one of their parents.”
However, as the article itself says – “it will be resolved based on the circumstances” – its interpretation must be made according to the specific case and based on the particularities of each family situation. The Supreme Court ruled in favor of the cassation, setting out in its foundations the following key points:
1. Free coexistence between the minor and the grandmother during visits with the father: It is not necessary to establish a specific visitation regime for the grandmother considering that the relationship was already maintained without restrictions during the father’s visitation period.
2. Judicial intervention as interference in family life: The establishment of an additional visitation regime for the grandmother, in this case, would represent an unjustified judicial interference in family life, given that the particular situation allowed the relationship between the grandmother and the minor will develop naturally.
Recent jurisprudence has promoted the non-intervention of the State in private family dynamics, except in cases where there are justified reasons.
3. The role of grandparents and the best interests of the minor: The Chamber recalled the significant and unique value that grandparents play in the lives of minors and that this relationship should be preserved except for just cause.
However, this recognition only applies when grandparents are effectively prevented from having a relationship with their grandchildren or when, given the concurrent circumstances, this access is very restricted and the interest of the minor requires expanding it (Art. 160 CC).
In this sense, the Supreme Court observed that the Provincial Court had invoked the interest of the minor in a “purely nominal” manner, without making a minimum reasoning effort that took into consideration the general criteria of art. 2.2 and 2.3 LOPJM.
The need to analyze the specific case
The cases can be very varied, and the right of grandparents to maintain a relationship with their grandchildren cannot always be exercised within the parent’s visitation regime.
For example, there are situations in which the parent does not reside in the same country as the minor, which makes it impossible for contact between the grandparents and the grandchild to take place during the parent’s visits. In a case where the father resided in Italy, while the minor and the grandparents lived in Spain, it would be logical to request a specific regime so that the grandparents could see the minor, since the father’s visits in another country would not allow contact with the grandparents
Conclusion
The magistrates determine that the best interests of the minor and the adaptation of visits to each situation must be taken into account. The ruling reaffirms that each situation must be analyzed taking into account its specific circumstances. The best interests of the minor continue to be the main criterion, but its application requires an in-depth analysis in each case, seeking a balance that allows the minor to maintain meaningful relationships with their family environment without unnecessary judicial interventions.
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