In cases of family breakdowns, it is important to understand grandparents legal rights.
In a child’s formative years, grandparents play a crucial role in ensuring the development of the child. In case of stressful events like parents’ separation or divorce, grandparents provide support to the child. Grandparents are especially important when considering the child’s wellbeing and protection during times of family crises.
During legal discussions of separation and divorce, the options available for grandparents are often overlooked. On many occasions, because an explicit discussion is not made about the rights of grandparents, they lose the relationship they share with their grandchildren.
This article aims to outline grandparents legal rights in Australia. To maintain contact with grandchildren, it is essential to stay aware, and updated about grandparents legal rights.
The Family Law Act 1975
According to the Family Law Act 1975, there are no explicit rights stated for grandparents. In this regard, the Family Law Act 1975 does not specifically refer to any rights for parents to maintain a relationship with the child either.
Under this legislation, the child’s best interests are given the utmost priority in determining whom the child may spend time with.
Under Section 60B of the Act, it is stated 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.”
In this part, grandparents are explicitly mentioned, among other relatives, as examples of people concerned for the care and development of the child.
How can grandparents be included in custody matters?
As part of grandparents legal rights, there are three options to ensure access to grandchildren, and inclusion in custody matters.
Parenting plans can include arrangements for grandparents to have relations with their grandchildren. Such plans can be made informally, which generally includes a written agreement to ensure grandparents legal rights. This is an ideal option in cases where there are no conflicts between the involved parties.
However, in certain families, grandparents already have very little or no influence on the children. In other cases, there might be ongoing conflicts within the family, between parents and grandparents. In these circumstances, it is advisable to lay out a more formal, concrete arrangement for grandparents.
A consent order is also a written agreement, but a consent order needs to be approved by the Family Court. Consent orders are useful for ensuring grandparents legal rights in cases where there are ongoing conflicts in the family.
Another approach to ensure grandparents legal rights includes applying for a parenting order. Grandparents have the right to apply for parental responsibility at the Court. The Court can then decide in favour of grandparents, depending on certain factors. The most important one of these factors that are considered by the Court include the child’s best interests.
Generally, parenting orders consider: –
- All aspects concerned with the child’s care, welfare, and development,
- where the child lives,
- who the child spends time with,
- who has parental responsibility for the child, and
- what communication the child will have with others.
For grandparents to exercise their legal right of applying for parenting orders to the Court, it is extremely important to seek legal advice. This is to maximise chances for the Court to make a parenting order in favour of the grandparents.\
Grandparents Visitation Rights
In case grandparents are not able to reach agreements with their children, they have the right to apply for visitation rights at the Court. To consider the application, the Court looks at factors like:
- The views of the child on whether they wish to spend time with the grandparents, and whether they see their grandparents as a significant part in their lives.
- The benefits of the child having a relationship with their grandparents.
- The risk of violence or neglect.
- The nature of the relationship between the children and their grandparents.
- The capacity of the grandparents to take care of the children, especially considering their intellectual and emotional needs.
- The practical difficulties and expenses
- The effect of change on the child
It is important to note that while grandparents have no explicit rights, they have the right to maintain relationships with their grandchildren. When an application for a court order is being considered by the Court, it is this right, among other grandparents legal rights, that the court considers in deciding whether to include or exclude grandparents.
Although there is no special provision for grandparents in Australian law, they have the access to the above-mentioned legal options to maintain a relationship with their grandchildren.
In cases of disputes between parents and grandparents, applying for Court orders should only be the last option to consider. In case of serious disputes, the Court will check if there had been an attempt to resolve the matter through Family Dispute Resolution (FDR) or mediation.
As a grandparent, if you have considered applying for court orders, you must note that it is important to first seek legal guidance and resolve all conflicts through Family Dispute Resolution.
How Legal Guidance can help Grandparents
For grandparents, watching their child going through a divorce or separation is in itself very stressful. To add to these troubles, grandparents generally have the fear of becoming estranged from their grandchildren.
Lawyers can provide advice in such matters, and important information on grandparents legal rights. Using legal pathways, grandparents can ensure that they maintain strong relations with their grandchildren. This is not only essential for grandparents, but it is equally important for the mental wellbeing of the children.
Contact JB Solicitors today to discuss how our lawyers can help with issues related to grandparents legal rights in Australia.
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