Grandparents Rights: How to See Your Grandchildren When Parents Divorce
Grandparents rights are often affected by relationship breakdowns, and this is often forgotten when talking about separation and divorce.
A divorce often entails an enormous restructuring of the family with many rearrangements for both the parents and the children.
These rearrangements can affect extended family members like aunts, uncles and especially grandparents.
Something many grandparents fear when one of their children’s relationships ends is that they will be prevented from seeing their grandchildren.
Depending on the relationship between the grandparents, their own children and sons- or daughters-in-law, they may be refused access to their grandchildren.
This possibility is usually more likely when one parent is granted sole or primary custody of the children and they do not wish to maintain contact with the grandparents.
Grandparents are often very important figures in children’s lives, and it can be heartbreaking to stop seeing them so often or at all because of a divorce.
However, there are ways to maintain or re-establish contact and communication between grandparents and grandchildren.
Grandparents Rights Under Australian Law
According to the legislation of the Family Law Act 1975, there is nothing specifically that refers to grandparents rights to see or to care for their grandchildren.
Nor, in fact, do the parents themselves have automatic parental rights. Parents have responsibilities towards their children.
It is the rights of the child that become the main focus here.
A child has the right to see and spend time with extended family members and other important people in their lives, and this includes grandparents.
The Act states:
“Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development.”
Elsewhere in the legislation grandparents are mentioned specifically as examples of people concerned for the care, welfare and development of the children.
A grandparent is legally defined as the parent of the mother or father of the child.
A child mostly has four biological grandparents, whether living or deceased, and may have non-biological grandparents as well.
Not having an automatic right to see their grandchildren does not mean grandparents are unable to do anything.
Grandparents have the right to apply for a court order to communicate with or spend time with their grandchildren.
The Best Interests of the Child
Family law legislation is based on the best interests of the child.
This means that the child has the right to benefit from a relationship with their grandparents so long as it is in their best interests.
When a grandparent applies for a court order for access to their grandchildren, the court will consider several different factors to determine whether the order should be granted in their favour.
These factors include:
- The need to protect the child from suffering or being exposed to abuse, neglect or family violence, or the risk of these occurring
- The benefit of a meaningful relationship with their parents and their grandparents
- The kind of relationship the child already has with their parents and grandparents
- The effect any changes to current arrangements would have on the child
- Whether the child is financially supported
- The ability of the parents and grandparents to provide for the child’s emotional and intellectual needs
- The attitude the parents and grandparents have towards the child
- The child’s views considering their age, maturity and understanding of the situation
- Practical issues involved with contact and communication
You will need to explain to the court that what you are seeking in your application is in the best interests of the child.
In section 65C of the Family Law Act 1975, grandparents are specifically included among the people who may apply for a parenting order in relation to a child. This reaffirms the importance of grandparents rights under Australian law.
A parenting order is an order made by the court that deals with an issue such as:
- Where the child lives
- Who the child spends time with
- The allocation of parental responsibility
- How the child is to communicate with other significant people in their lives
- Any other aspect of the child’s care, welfare and development
Communication methods will vary according to the situation and details of each parenting order application.
Communication can include Skype, phone calls, emails, letters and sending gifts.
Parenting orders made in favour of the grandparent spending time with their grandchild may incorporate several different configurations of spending time according to the individual case.
For example, grandparents rights may allow them to spend time with their grandchild on overnight visits, visits during the day, stays on the weekend or allotted time during the school holidays.
This is the best way that a grandparents rights to see grandchildren can be solidified in law.
For a parenting order to be made in favour of the applicant, in this case, the grandparent, the order needs to be in the best interests of the child.
A parenting order can also be made to grant custody of the child to the grandparent.
A grandparent can receive full or shared custody of their grandchild.
Orders for custody may be necessary when the parent of the child is unable, unwilling or has no capacity to care for them.
To grant such an order, the court needs to be satisfied that the child’s parent is in one of these categories and cannot meet the child’s emotional, intellectual, developmental or financial needs.
The court generally prefers to allow the child to benefit from a meaningful relationship with their parents wherever possible.
Therefore, the court is more likely to grant a parenting order for custody in favour of the grandparents in cases that involve abuse, neglect, family violence or substance abuse.
When a parenting order means that a grandparent legally becomes a child’s primary caregiver, the court may also grant parental responsibility to the grandparent.
Parental responsibility and custody are not the same.
Having parental responsibility means having the legal authority, duty and responsibility that a parent usually has in relation to their child.
It involves being able to make significant decisions about the child’s life, such as where they go to school, their religious and cultural upbringing and any medical treatment.
If a grandparent is given parental responsibility for their grandchild, they do not need to consult with the child’s parents before making decisions for the child.
If the parents and grandparents of a child agree about arrangements, contact, custody and communication, then they can apply to the court for a parenting order by consent.
There is no hearing and the agreement is registered with the court.
A parenting order by consent formalises the agreement made between the parents and grandparents.
Parenting orders, whether determined by a judge or made by consent, are enforceable by law.
There is another type of agreement called a parenting plan.
Parenting plans are recognised in family law legislation but they are not enforceable by law.
A parenting plan is a written document that details the arrangements parents and grandparents have agreed upon for a child.
There is no need to go to court to create a parenting plan as it is worked out jointly.
However, if the agreement is made under any threat, duress or coercion, then it is not legally considered a parenting plan.
A parenting plan is a way in which grandparents rights can be secured.
A parenting plan is a way grandparents rights to see grandchildren can be solidified.
This is a great alternative to have contact with their grandchildren without going to court if they can come to an agreement with the child’s parents.
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Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.