Grandparents play an integral role in a child’s life. They greatly influence the personality of a child, and contribute to the overall development of a child. Because of the significant part they play in children’s lives, the question of do grandparents have visitation rights is important.
When a couple goes through a divorce or separation, grandparents are often kept out of the loop because the situation gets extremely complicated. However, this is overwhelming even for them as they worry about the future in terms of whether or not they will have access to the child/ren after the divorce or separation gets finalised.
This article aims to answer the question of do grandparents have visitation rights in detail by firstly analysing what Australian legislation states in this regard.
Do Grandparents Have Visitation Rights: Australian Legislation
The Family Law Act 1975 does not explicitly mention that grandparents have automatic rights to spend time with children. Notably, even parents have no such automatic rights, they have parental responsibilities towards their children.
When analysing this, it becomes clear to understand that the legislation places focus on the children, and their best interests, rather than the rights of parents or grandparents.
While there is no explicit mention of grandparents rights in the Family Law Act 1975, it is stated that the child has the right to have a relationship with members of his or her extended family. Under this part, grandparents are clearly mentioned.
Section 60B of the Family Law Act 1975 states that:
“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 (such as grandparents and other relatives.”
Grandparents are thus explicitly stated here as people who are significant to the care, welfare and development of the child.
Therefore the short answer to the question of do grandparents have visitation rights is as follows: while grandparents have no specific provisions, they are acknowledged as people who are concerned about the care and development of the child are therefore allowed to visit the child or have access to the child.
How Can Grandparents Ensure Access To Their Grandchildren?
When we are asked the question of do grandparents have visitation rights, it is often followed by the question on how to ensure access to grandchildren.
Grandparents can be included in parenting plans, consent orders or parenting orders. They can be a part of custody and visitation arrangements. While parenting plans are being formulated by the parents of the child, they can include schedules to accomodate visits with the grandparents as well.
Importantly, grandparents even have a right to apply for parental responsibility at the court. The family courts will assess the circumstances of the case and analyse the best interests of the child before making any parenting orders.
While making visitation arrangements for grandparents, the views of the child will also be given consideration. Under the Family Law Act, the child’s views and opinions are important secondary considerations under the best interests principle – as detailed in Section 60CC of the Act.
Considering this, it is important to note that the answer to the question of do grandparents have visitation rights will largely depend on what the child/ren think about the same. For instance, before any parenting arrangements which include arrangements for grandparents are finalised, the following factors will also be taken into consideration:
- The views and opinions of the child/ren on whether they wish to spend time with grandparents;
- Whether they view the grandparents as a significant part of their lives;
- The nature of the relationship the children share with their grandparents;
- The capacity of grandparent and parents to care for the children;
- The effect of any changes or arrangements on the well-being of the children
Do Grandparents Have Visitation Rights: Frequently Asked Questions
Q1 – Can a parent deny grandparents’ visitation rights?
As we’ve explored, grandparents have no explicit rights, however the child’s right to spend time with relatives such as grandparents is important. Therefore, it will be difficult for a parent to deny the right if it is considered to be in the child’s best interest to allow grandparents to visit him/her.
Q2 – Can grandparents apply for sole parental responsibility?
In extreme scenarios where both parents are unable to provide care for to the child because of drug or alcohol abuse, or because they are mentally unfit or incapable to care for the child, the grandparents can apply for sole parental responsibility at the court.
Q3 – Can grandparents’ visitation rights be ensured only by visiting family courts?
Approaching the court is the last option. First and foremost, grandparents must make visitation schedules or arrangement with the parents of the child/ren. If these plans are made informally, you may choose to make them binding by applying for consent orders.
In cases where the parties are unable to reach agreements, the grandparents and the parents will need to attend mediation session or family dispute resolution sessions to reach a satisfactory result.
If all these approaches fail, only then can the parties approach courts. In this case, grandparents will need to apply for parenting orders at the court. These orders will be made by assessing which outcomes will be in the best interests of the child.
Q4 – If a grandparent has sole parental responsibility, will they receive any financial support?
Yes, grandparents who are looking after children and have sole parental responsibility can get financial support in the form of Grandparent Child Care Benefit, Child Support, etc.
Legal Advice From Family Lawyers
Divorce and separation is a stressful matter for all involved parties, and this includes grandparents. This article has answered “do grandparents have visitation rights” by understanding what the Act states in this regard.
If you are unsure about the approaches you can take to regularly meet your grandchildren, seek legal advice from the family law team at JB Solicitors. We have a wealth of experience in dealing with cases related to grandparents’ rights.
If you have more questions such as do grandparents have visitation rights, please do not hesitate to contact us directly.
