If you are a grandparent or parent, you may be interested to know that parents’ rights against grandparents come in all shapes and sizes. Ultimately, they will depend on your circumstances and whether grandparents are willing to exert their rights against parents in a courtroom setting.
The purpose of this article is to discuss the various scenarios in which parents’ rights against grandparents is a contentious issue.
Grandparents Rights In Family Law
The Family Law Act (1975) contains a provision that provides that children have the right to maintain regular communications with persons essential for their welfare, development, and care. Accordingly, these provisions will capture grandparents as long as they meet this criterion. It is important to note, however, that grandparents’ rights do not automatically arise legally. If grandparents wish to have custody of their grandchildren and exclude the involvement of the children’s parents, they will need to pursue legal proceedings seeking parenting orders to that effect.
Accordingly, parents rights against grandparents do automatically arise – and parents may legally decide whether or not the children’s grandparents are permitted to have custody of their children or even have visitation rights. The only exception to this is the rule mentioned above, and if grandparents seek to enforce the rule in the Court.
What Happens If The Grandparents Take Me To Court?
If the grandparents of your children wish to take the parents to Court, this is primarily when the parents’ rights against grandparents will arise and be determined based on the orders sought by the grandparents. On the lower end of the spectrum, grandparents may seek parenting orders which grant them visitation rights. On the extreme side, grandparents may wish to obtain full custody or sole parental responsibility of the children.
There are various situations where grandparents may apply for sole parental responsibility of your children; these include:
1. Where both parents are unable or unwilling to care for the child or children properly
2. In a situation where the parents of the child or children expose them to any forms of harm, including abuse, neglect, violence and drug use.
3. Where both parents lack the mental capacity to take care of the child or children adequately
4. Other situations which may prevent either parent from adequately caring for the child or children
What Does The Court Consider In Determining Parenting Arrangements?
The Court may determine that it is in your child’s best interests or that the grandparents have sole parental responsibility for your children. Practically, this means that your children’s grandparents will have full custody of your children and be responsible for all major decisions concerning their lives, without the need to consult you or the other parent. Accordingly, in such a situation, parents’ rights against grandparents are virtually non-existent legally. The only options for parents would be to attempt to resolve the matter informally with the grandparents or pursue further legal action.
What Are The Best Interests Of The Child?
The child’s best interests are a set of factors the Court will take into consideration when determining the parenting arrangements of a child or children. Practically, what this means depends on what the grandparents are seeking against the parents
The primary two considerations are:
1. Whether there is a need to protect the child from any forms of harm, including abuse, neglect and family violence.
2. The benefit of the child having a meaningful relationship with both parents, considering the aforementioned factor.
Additional considerations include:
1. The views of the child or children, relative to their level of understanding of the situation and maturity level.
2. The relationship between the parents, grandparents and the children
3. The ability of each parent to facilitate an ongoing relationship with one another for the sake of the children
4. The likely effect of any changes in the circumstances of the children – such as separating them from the grandparents or other parent
5. Any unique or particular characteristics of the children, and the ability of the grandparents and parents to accommodate for any requirements eventuating due to such factors
Common Reasons Parents Rights Against Grandparents Will Suffer
Typically, parents’ rights against grandparents will be diminished in the situations mentioned above. This generally is when the parents do not adequately care for their children, exposing them to family violence or illicit drug use. Accordingly, the Court will determine that it is not in the best interests of the child or children to continue living with their parents and may award the grandparents sole parental responsibility of their children. Suppose you are a parent in this situation and wish to be involved in your children’s lives. In that case, it is recommended you seek to amend these issues before discussing the matter with the grandparents again or re-commencing proceedings. Practically, this could mean seeking counselling for violence issues, drug and alcohol rehabilitation and so forth.
Importance of Seeking Legal Advice
When discussing matters such as ‘parents rights against grandparents’, it is essential to note that your rights will vary greatly depending on your circumstances. To get the most accurate account of your situation, please feel free to contact one of our friendly and experienced family solicitors today.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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