Grandparents care for, and deeply love their grandchildren. A child typically has four biological grandparents – two from the mother’s side and two from the father’s side. These grandparents may tend to ask themselves “Can grandparents get visitation rights when parents divorce?”. Divorce and separation is never easy, not just for parents, but also for children.
Moreover, there are relatives and other family members that may also want to maintain contact with children involved in a separation. For grandparents, they may feel that they should have the right to spend time with their grandchildren since they believe they are entitled to.
However, if they don’t have a good relationship with the parents of the child, they may need to apply to the Federal Circuit and Family Court of Australia (FCFCOA) for a court order to visit their grandchildren. Non-biological or biological grandparents may also apply to the court for parental responsibility for their grandchildren if they want more than visitation rights. This article will talk about “can grandparents get visitation rights to see their grandchildren?”
Grandparents Rights and the Family Law Act
Can grandparents get visitation rights? Not automatically. Grandparents will also have to check if their presence is truly in the child’s best interests if ever they want to visit. According to Section 60CC of the Family Law Act 1975, the child’s best interests include the child being protected from harm and abuse.
Additionally, the Family Law Act states that children should enjoy the right to have a meaningful relationship with their parents and any other relevant person in their lives. There is nothing specifically mentioned in the Family Law Act that relates to the topic of whether grandparents can get visitation rights. However they have a significant role as important people in the life of the child according to Section 60CC of the Act.
Likewise, nothing is also mentioned in the Family Law Act about mothers or fathers having an automatic right over their children. This is because courts will only allow grandparents the right to spend time with their grandchildren if it is in the child’s best interests. Aside from the best interests of the child, courts will also look at following factors.
- Child’s views and opinions depending on their age, maturity and level of understanding
- Child’s relationship with their grandparents, parents, aunts, uncles, siblings/step-siblings, grandparents, and extended families
- Effect of any change to the child’s life such as where the child lives, his/her circumstances, and if it causes them physical or psychological harm
- Practical difficulties and expenses involved with the child spending time and communicating with a parent,
- Capacity of each parent, and other significant people in the child’s life
- Grandparent’s health, age, and financial circumstances, and if they need financial assistance
- Possibility to re-establish contact with the child’s grandparents
- Parent and child’s maturity, sex, lifestyle, and background
- Child’s life and background if he/she is Aboriginal or a Torres Strait Islander
- Child’s rights to enjoying Aboriginal or Torres Strait Islander culture
- Parent’s attitude and relationship towards the child and parenting the child
- Parent’s ability to pay child support
- Cases that may involve family lawyers, family violence and apprehended family violence orders (AVOs)
Can the Child’s Parents Stop Grandparents From Seeing Their Grandchildren?
Most separating parents can make agreements on who the child will live with, spend time with, and communicate with. If all goes well, the separating parents may do this informally with family lawyers without the court’s involvement. They may draft this into a parenting plan that contains childcare arrangements and maybe allow grandparents to see their grandchildren.
But if the child’s father and child’s mother continue to disagree, they may go to court, have the court decide on arrangements, and write consent orders. The FCFCOA will then formalise these consent orders that contain parenting arrangements and turn them into legally binding court orders or parenting orders. Parents can also make parenting plans which can be turned into a consent order. Otherwise, parties may approach the court and have them make a parenting order.
Hence, they may decide if they want to allow their child’s grandparents to see them or not through a parenting order. Can grandparents get visitation rights when they are the primary carer of their grandchildren? Yes. This is if they can prove that they did exhibit concern in regards to their grandchild’s care, welfare, and development.
Grandparents Rights: Spending Time and Visiting Grandchildren
For instance, the grandparents were able to prove that they are concerned with their child’s care, welfare, and development. It’s highly advised to seek the legal services of family lawyers when talking about grandparents’ rights. But we also have to discuss what grandparents need to prepare if they want to spend time with or visit their grandchildren.
1. Have calls in between visits
Technology today has allowed people to contact other people online, so grandparents should also utilise this so the child spends time with their grandparents. Grandparents should communicate with each parent when they can call in order to avoid confusion with calling schedules.
2. Plan the Visits
Grandparents can’t just visit out of the blue and expect to have a good time. An itinerary should help grandparents keep track of their visiting time. This can also help them with when and where to go in case they also want to have a vacation outside of the child’s residence. Below is a list of what grandparents can include or prepare when they are visiting:
- Bring favourite toys or items of the child
- Book a hotel with proper accommodation when going on a vacation
- Pack meals or snacks when needed for the child
- Listen to the emotional needs and provide proper life advice to the child
- Be present emotionally and socially for the child
- Have emergency kits and emergency numbers for safety purposes and establish medical treatment when necessary
- Update parents’ on their activities and whereabouts of their child
3. Parents Should Know Their Limits on Parental Responsibility
Parental responsibility is having legal authority over a child’s major life decisions. The child’s parents should also trust and let the grandparents plan out their activities for their grandchildren. Since grandparents only visit their grandchildren, parents should let them make the most out of their time. However, grandparents should also have the duty to update the child’s parents from time to time about their ongoing visits.
But, what if parents prevent grandparents from seeing their grandchildren? As mentioned, grandparents will need to go to the family court in order for them to spend time or communicate with their grandchildren. Courts will then base their decision according to the best interests of the child. Here are other aspects to consider if ever parents refuse grandparents from seeing their grandchildren.
1. Seek Legal Advice From Family Lawyers
Perhaps this is the most practical and safest approach since a family lawyer can provide grandparents with legal advice on approaches that can help them understand their grandkid’s rights. JB Solicitors‘ family lawyers can also attend to other family law matters aside from grandparents rights and explain to them how to gain visitation rights.
2. Hiring An Alternative Family Dispute Resolution Practitioner
Not every case has to go to court, especially if there are alternative family dispute resolution (AFDR) methods that disputed families can use. An example of an AFDR is our mediation services which is a method that involves a neutral third party. Our family lawyers at JB Solicitors can help disputed family members to decide the best parenting arrangement for children.
Contact our team of family lawyers today to know more about grandparents rights.