Grandparent Rights

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Grandparent Rights

A relationship between you and your grandchild or grandchildren generally relies on coordination with their parents. So, what are your options if your relationship with your grandchild or grandchildren’s parents breaks down?

It is a common misconception that grandparents have a ‘right’ to see their grandchild or grandchildren. Instead, the court recognises that it can be in the best interests of a child to have a relationship with their grandparents, because grandparents are generally “people significant to [a child’s] care, welfare and development”. The court will consider the best interests of the child as the paramount consideration for grandparent rights.

What can I do if I want to see my grandchildren?

If you are looking to spend time with your grandchild, and your grandchild’s parents are not agreeable to this time, prior to making an application to the courts, you should invite the parents to meet with a child psychologist, or participate in mediation, family therapy, or a similar process. A neutral third party can assist negotiations, and provide advice on what might be considered in the child’s best interests.

If negotiations are successful, the time you spend with your grandchild or grandchildren and the impact you have on their lives, can be documented in the following ways:

Within a parenting plan. Importantly, the parenting plan must be signed by both parents for you to be included in it. Parenting plans are also not binding or enforceable, so you will be unable to make an application to the court for a contravention order if either parent withholds your grandchild or grandchildren.
Within a consent order. Again, this requires the agreement of both parents. A consent order has the effect of a final order made by the court and is both binding and enforceable on both parents.

Seeking a court order

If an agreement cannot be reached via negotiations, you can seek an order from the court that outlines the time you spend and the amount of communication you have with your grandchild or grandchildren.

In making a decision, factors the court will take into consideration include:

Whether the child has expressed views or wishes to spend time with you (and whether the child is mature enough to understand what such expressions mean)
What amount of time the grandchild has or grandchildren have spent with you to date. If you historically spent a lot of time with your grandchild or grandchildren, the court will be more inclined to support that existing relationship, particularly where it would provide stability during the breakdown of the family
What kind of relationship exists between you and your grandchild or grandchildren, because, again, the court would want to support the continuation of this relationship
Whether it is practical to facilitate time between you and your grandchild or grandchildren

Can I become primary carer?

The family law court also has the capacity, in extreme circumstances, to make a finding that your grandchild or grandchildren live with you on a full-time basis, that you become the primary carer, and that you have sole parental responsibility for the grandchild.

You would be required to demonstrate that it is in the child or children’s’ best interest that they live with you. For example, it would likely be in the child’s best interests to live with you and have limited or supervised time with biological parents if there has been a history of child abuse and/or family violence or drug use.

If an order is made whereby you become solely responsible for your grandchild, the Department of Human Services can offer you financial assistance.

There are risks associated with making an application to the court. For example:

The legal costs incurred
If the matter is not urgent, there can be delays expected for a final hearing
If the court makes a finding that the child should not spend time with you, this can be extremely emotionally taxing, and a great deal of loss can be felt
It may be difficult to establish that biological parents are not making the decisions that are best for their child or children (because the court will always look to promote a meaningful relationship between a child and the child’s parents where possible)
If an unstable relationship exists between you and your grandchild’s parents, the stress and emotion arising from litigation can put even further strains on these relationships

If you wish to seek orders to spend time with your grandchildren, Ramsden Lawyer’s family law team can assist and advise you as to your rights and, if necessary, make an application to the court to enforce those rights.

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