The bond that most grandparents have with their grandchildren is special and unique, so their desire to intervene is understandable when there are complications in family dynamics that put their grandchildren’s welfare at risk.
This can result in their grandchildren being prohibited by the parents from spending time with their grandparent. But that begs a question. Do grandparents have legal rights to see their grandchildren? The answer is, “it depends”.
Relevant provisions in the Family Law Act
Legally, a grandparent is defined as the parent of a child’s mother or father. This means that most children have four biological grandparents. However, children who are adopted or those with step-parents may also have “non-biological” grandparents.
In any case, the importance of the relationship between grandparents and grandchildren is affirmed in the Family Law Act -a piece of Australian legislation that defines and protects children’s rights.
The law acknowledges the significance of this relationship by:
- recognising that children “have a right to maintain regular communication” with certain people; and
- including grandparents in that category.
Even so, the Family Law Act does not include any provisions that give grandparents automatic rights to see their grandchildren. Instead, it allows them to ask the court for permission to spend time with their grandchildren when the child’s parent(s) refuse to let them do so. The Family Law Act also allows grandparents to seek custody of their grandchildren in certain circumstances.
Specifically, grandparents can seek temporary or permanent custody of their grandchildren when:
- addiction or alcoholism prevents one or both parents from looking after the children properly;
- mental or physical illness prevents one or both parents from providing adequate care;
- the children have been abused (sexually or physically);
- there is evidence of domestic violence;
- other significant factors are in play.
The best interests of the child
As the Court’s main concern is ensuring that no harm comes to children, any decision the court makes in this regard is based on “the best interests of the child”. In this context it will generally assess:
- the type of relationship of the child with a grandparent (or other relative of the child);
- how the child may react to any changes in his or her situation, including his or her potential reaction to any separation from a grandparent (or other relative) with whom he or she has been living;
- the grandparent(s) ability to meet the child’s needs.
Depending on the situation, the court may also take other factors into account. It will even consider the child’s wishes, depending on his or her age and maturity.
Other options for resolution
You should be aware, that going to court is not the only way to seek permission to spend time with your grandchildren. If anything, it is viewed as a last resort.
This is because Australian law encourages families to try to reach consensus on key issues through informal negotiations and mediation before seeking court intervention.
Mediation is a structured process in which a specially trained person, called a mediator, facilitates the conversation and helps the participants come to a mutual agreement. The type of mediation used as a tool for the resolution of parenting matters is also known as Family Dispute Resolution or FDR.
However, there are some circumstances in which FDR is not required. For example, FDR is not applicable when there is evidence that the child is at risk of harm and the matter is urgent.
How to make informal agreements enforceable
Depending on the family dynamics and other factors, grandparents and parents may sometimes reach informal agreements regarding the care of the children. This type of agreement may specify where the children live and how long they can live there. For example, a single parent being treated for addiction may agree to let the children stay with their grandparents until she finishes rehab.
Unlike agreements reached through mediation or FDR, however, these informal agreements are not legally binding or enforceable. The only way they can be enforced is if the terms are specified in a court-approved document called a parenting order by consent.
Assumption of parental responsibility
When the court awards permanent or temporary custody of a child to his or her grandparents, it may also allow the grandparents to assume parental responsibility for the child. This means the grandparents are legally authorised to make certain decisions regarding the child’s wellbeing without having to obtain the parents’ consent.
This includes decisions for their grandchild such as:
- medical care;
Grandparents with the permanent care of their grandchildren may qualify for financial assistance, such as:
- Grandparent Child Care Benefits;
- Family Tax Benefits;
- Double Orphan Pension;
- Child Support.
For grandparents caring for grandchildren with special needs, Centrelink may also provide:
- Carer Payments;
- Carer Supplements;
- Carer Allowance;
- Child Disability Assistance Payments;
- Carer Adjustment Payments.
If you’ve been denied access to your grandchildren or you are concerned about their wellbeing, and you’re interested in seeking time with your grandchildren, it is important that you get the proper legal advice. To learn how we can help, contact us today.