(CN) – EU grandparents should be able to seek court relief when it comes to child access, a magistrate with the European Court of Justice advised Thursday.
The opinion this morning from Advocate General Maciej Szpunar comes in a challenge from Neli Valcheva who sued her former son-in-law, Georgios Babanarakis, to obtain rights of access to her grandson Christos.
The boy turned 16 last week and has been living in Greece with his father since his parents’ divorce.
Valcheva meanwhile is a Bulgarian national. Finding that she could not maintain quality contact with Christos, and that Greek authorities gave her no support, Valcheva sought to have the Bulgarian courts arrange access.
Valcheva requested that the teen spend one weekend with her per month regularly, as well as two or three weeks of his holidays.
Based on their findings that Christos’ habitual residence has been in Greece, however, both the Bulgarian trial and appellate courts dismissed Valcheva’s action for lack of jurisdiction.
The Bulgarian Supreme Court meanwhile invited Europe’s top court last year to weigh in on whether the so-called Brussels IIa Regulation on parental responsibility applies to the rights of access of grandparents.
Advocate General Szpunar advised the court Thursday to endorse this right, emphasizing how the significantly globalization and other phenomenons have changed the family. In addition to the considerations of whether a parent works and lives in different member states, or if they have dual nationalities, Szpunar said courts must also grapple with diverse types of union, from marriages to civil partnerships, and with the new forms of parenthood, identifying the issues of adoption, stepchildren and medically assisted reproduction as just a few examples.
“Those economic and sociocultural changes, whose multiple effects on the lives of citizens are being felt at a steady pace, require in some cases a reconsideration of the assumptions underlying legal systems and the substance of their rules, and necessitate an adaptation of the law and in particular EU law,” Szpunar wrote.
As lawmakers struggle to adapt, however, Szpunar noted that gray areas arise.
“The case in the main proceedings is an illustration of those gray areas created by developments in society, in particular with regard to a child’s contact with other persons to whom the child has ‘family’ ties based on law or on fact (such as the former spouse of one of the parents, the child’s siblings, grandparents or the partner of a parent who is the holder of parental responsibility),” the opinion states (parentheses in original). “Those gray areas may give rise to, sometimes paradoxical, uncertainties concerning the existence of rights of access by persons other than the parents, in this case grandparents.
“With regard to grandparents specifically, is not that uncertainty disconcerting considering that, in principle and subject to the best interests of the child, contact between grandparents and their grandchildren, in particular in an ever-changing society, remains an essential source of stability for children and an important factor in the intergenerational bond which undoubtedly contributes to building their personal identity?”
Szpunar also emphasized, however, how granting rights of access to a grandparents could interfere with the rights and duties of parents.
“It is therefore necessary, in order to avoid conflicting measures and in the best interests of the child, for the same court, that of the child’s habitual residence, to rule on rights of access,” Szpunar wrote.
If the EU courts opt not to protect grandparents’ rights of access, Szpunar warned, the risk increases that a child will be brought before a court with which he has no close link. “The likelihood of parallel proceedings and irreconcilable decisions would increase” as well, Szpunar added.
The advocate general’s opinion is not binding on the Luxembourg-based court, which now begins its own deliberations.