We are experiencing, as never before, the social phenomenon of an aging population, derived not only from the enormous increase in life expectancy, but also from the ever-increasing decrease in the birth rate. It is easy today to find families with one, two or three co-existing generations living in the same house and sharing the same space.
The Law must respond to these relationships by framing them, especially in cases of family breakdown, where the role of grandparents is often decisive in the mental and physical health of children.
Now, what happens countless times, is exactly the opposite, since many grandparents, after the family breakup of their children, are faced with a series of obstacles that prevent their contact with their grandchildren. The importance of grandparents in the lives of their grandchildren is now highly recognized socially. A importância dos avós na vida dos seus netos é actualmente muito reconhecida a nível social.
Before the changes introduced in the Civil Code by Law nr. 84/95, of August 31, it was only possible to conceive a right of relationship between grandparents and grandchildren, against their parents’ will, when the latter were in one of the situations contemplated in article 1918 of the Civil Code, such as danger to their safety, health, moral formation or education. Outside of these situations, our jurisprudence has always denied grandparents the “visiting right”, under the pretext that this “right”, besides not being enshrined in our legal system, was part of the paternal power, which belonged exclusively to the parent who had custody of the child. In 1995, the Portuguese legislator then recognized the importance of the interaction between grandparents and grandchildren and created a norm to accommodate it. Under article 1887-A. of the Civil Code:
“Parents may not unjustifiably deprive their children of socializing with siblings and ascendants.”
This rule ended up expressly introducing a limit to the exercise of parental responsibilities, forbidding parents to prevent, without justification, the normal relationship of their children with their grandparents. The legislator has enshrined a right for the grandchild to relate to the grandparents, which is called “visitation rights”. With this right, the legislator intended to protect the bond of love, affection, care, and solidarity that should exist between close family members.
The relationship between grandparents and grandchildren contributes greatly to the moral formation of the child.
In addition to the playful and affectionate part that grandparents provide to the child, making them feel more loved and valued, nowadays in families where both parents work long hours away from home, grandparents replace the parents during their absence, spending much time with their grandchildren. This “visiting right” foreseen in article 1887-A.º of the Civil Code, takes on particular importance in cases of family breakdown or disintegration since these situations often generate a forced separation between grandparents and grandchildren. Too often we see situations where the parent who has custody of the child prevents the child’s normal relationship with the other parent’s parents.
However, this “visiting right” can also be invoked by grandparents when, even if there is no such situation of rupture, the parents prevent the grandparents from living with the child. It should also be noted that “visiting rights” granted to grandparents are not to be confused with the “custody rights” that correspond to the exercise of parental responsibilities, nor do they confer on them the same “powers” as those granted to the parent without custody of the child. In practice, these grandparents’ rights consist of the right to meet their grandchild at his or her home, namely at the home of the guardian, the right to receive grandchildren at their home, the right to contact by telephone by letter or e-mail, and the right to receive information about various aspects of the grandchildren’s life, in particular about their physical and mental health.
However, the grandparents’ interest applies only and to the extent adjusted to the grandchild’s interest.
However, the grandparents’ interest applies only and to the extent adjusted to the grandchild’s interest. It is thus presumed that living with grandparents is not only positive, but also healthy and enriching for the child and, as such, it will be up to the parents, or the parent who has custody of the child, to prove that, in the specific case, this relationship will be harmful to the child. In these cases, it is the Court that must assess the cause of the refusal according to the principles of proportionality, necessity and adequacy.
Parents have the good sense not to let situations that are exclusively their responsibility, such as a marriage breakdown, further interfere in their children’s lives. It is up to the parents to normalize these situations as much as possible by allowing and encouraging their children to have contact with the other parent’s family. It is up to the parents to help their children grow up happily with their family, which has not ceased to be a family because of the breakup of their marriage.