Grandparents play a significant part in most children’s lives from an early age and may even be their primary care giver. However, as marriage misadventure takes its toll, grand kids are sometimes used to exact retribution on in-laws. This is never fair to the children involved or unwilling family members who are dragged into the fray.
If someone is keeping you from spending time with your grandchildren, you can seek total, partial or overnight care, Schedule a free 30 minute consultation with our family lawyers in Adelaide and Christies Beach to make you don’t miss out on priceless moments with your loved ones.
What rights do grandparents have?
The Family Law Act 1975 (Cth) is primarily concerned with the well-being of the child and affords grandparents rights to their children. In the Act, a grandparent is the parent of a child’s mother or father. In most cases, a child will have four biological grandparents, but may also include non-biological grandparents.
Grandparents do not have an automatic right to care for or see their grandchildren. Instead, they have standing. This is a right to apply to the Family Court for Orders. The law provides that children have a right to maintain regular contact with people that are important to their development, care and welfare. The Act explicitly states that grandparents are included in the category of people a child should remain in contact with.
Grandparents may apply to the Court for Orders to spend time with their grandchildren
Our compassionate family lawyers are parents too and can help you apply to the Court when both parents are unwilling, unable or lack the ability to care for your grandchildren. Our Adelaide Family Lawyers are skilled at drafting orders that allow:
- Grandparents to spend time with and communicate with grandchildren
- Grandparents to obtain parental responsibility of grandchildren
- Grandchildren to live with their grandparents.
You can seek these orders whether your grandchild’s parents are together or separated. If you are being kept away from your grandchildren, you do not need to wait. We will do everything in our power to make sure you are a part of their lives.
Helpful Questions & Answers
Can my grandchildren live with me?
The Family Court will consider the best interests of the child when making orders relating to parenting. As a grandparent, you may apply custody or access to a grandchild if a parent is:
- Neglecting or abuse the child
- Incapable of caring for the child
- Suffering from mental health issues
- Unable or unwilling to care for the child
- Abusing drugs or alcohol
- Creating an unsafe environment
If the safety of the child is in question or any other serious concerns exist, the Family Court will consider making an order of a grandparent.
What kind of help is available to grandparent caregivers?
Grandparents may apply to Centrelink for financial assistance including:
- Grandparent Child Care Benefit;
- Family Tax Benefit;
- Double Orphan Pension; and
- Child Support.
I am caring for my grandchildren and the parents want them back
If you have an informal agreement with your family for the care of your grandchildren you may want to consider formalising the agreement. We recommend putting the agreement in writing with both parents and registering it with the Court. This is called a Consent Order.
Formalising the agreement clarifies where you stand and may assist if disputes arise in the future about caring for the children. Our Adelaide Family Lawyers can assist you by drafting Consent Orders.
If you have been informally taking care of your grandchildren and think it is not in their best interests to resume living with the parents, you may consider starting court action to seek orders that the children remain with you.
Do I need to get the Court involved?
Before commencing legal action you may be required to attend Family Dispute Resolution (“FDR”). FDR is where an independent person who is trained to help families discuss their differences tries to help you explore possible solutions with each other. This is also called mediation or conciliation. There is no requirement to attend FDR if the children are at risk of abuse or neglect.
If the mediation is successful the agreement about the time you are to spend with your grandchild can be written up in a Parenting Plan or even Consent Orders which can then be lodged with the Court. If you are not able to resolve the dispute about contact with your grandchild through mediation you may have to apply to the court for an order that you can spend time with or communicate with your grandchild.
How will the Court decide what is in the child(s) best interests?
The Family Court is mainly concerned with:
- the benefit to the child of having a meaningful relationship with both parents
- the need to protect the child from harm
The Court will consider:
- the view(s) of the child – this depends on their maturity, age and level of understanding
- the child’s relationship with parents and others, including grandparents and other relatives
- each parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent
- the effect of any change to the current situation on the child
- the practical difficulties and expense involved in ‘spending time with’ and ‘communicating with’ a parent
- the capacity of each parent and others to provide for the child’s needs – as a grandparent this may include your health, age and financial circumstances
- the maturity, sex, lifestyle and background (including culture and traditions) of the child and parents
- if the child is Aboriginal or Torres Strait Islander, the child’s right to enjoy Aboriginal or Torres Strait Islander culture
- each parent’s attitude to the child and to parenting
- any family violence involving the child or a member of the child’s family
- any family violence order that might exist
- the desirability of making the order that is least likely to lead to further court proceedings
- any other circumstance the Court thinks relevant.