Following a divorce or separation, parents will sometimes go to Court regarding the parenting arrangements of their children, resulting in one parent obtaining sole parental responsibility or sole custody of the children.
While the Court has decided that one parent may not be allowed to see their children, or they can only see them in limited circumstances – where does this leave the grandparents?
This article will discuss this precise situation and whether grandparent’s visitations rights exist in Australia.
Does The Law Recognise Grandparents Visitation Rights?
As per the Family Law Act 1975, children have the right to maintain regular communications with people deemed essential for their welfare, development and care – which can encapsulate their grandparent’s.
However, grandparent’s visitation rights do not arise automatically. Therefore, more often than not – grandparents will need to pursue the matter in Court if a parent of the child is refusing to allow them to visit their grandchildren.
Do I Have To Commence Legal Action?
It is not required for you to commence legal action to find an agreeable solution. If you have tried talking with your grandchildren’s parents and have been unable to come to a solution, you may try a mediation session. Mediation is less time consuming and costly in contrast to pursuing legal action. If an agreeable resolution is reached in a mediation session, it may also be formalised in a parenting plan or consent orders which can then be lodged with the Court.
What If I Need To Pursue Legal Action?
If the matter cannot be resolved through informal means or mediation, applying with the Court would be the next step to obtain Grandparents visitation rights. Before commencing legal action, you should consider getting legal advice from an experienced family lawyer to advise you on your case’s prospects. If your matter did proceed to Court, the Court would primarily consider the ‘best interests of the child’ in arriving at a decision.
When Should A Grandparent Apply For Sole Parental Responsibility?
- Both parents of the child are unable, unfit or unwilling to care for the child.
- The child is exposed to a dangerous or damaging environment – e.g. family violence, harm or parents who abuse drugs.
- Both of the child’s parents lack the mental capacity to care for the child
This list of factors is not exhaustive by any means. The Courts will consider any other reasons that prevent either parent from doing an adequate job raising their children. If you are a grandparent who believes that their grandchildren are not in a good environment, you should contact an experienced family lawyer as soon as possible.
Grandparents Visitation Rights & Custody Rights
Under the Family Law Act 1975, Grandparents must apply for parenting orders to obtain visitation rights or custody of their grandchildren. In determining whether to approve these applications, the Family Court of Australia will consider the child’s best interests in the same way they are considered in parenting arrangements.
In determining whether the Court will grant grandparents visitation rights or custody rights, the following will be taken into considerations:
- The views, opinions, age and level of understanding of the child
- Whether there is a need to protect the child from family violence, abuse, neglect or any other form of harm
- The relationship the child has with the grandparents, and the impact of any changes in those arrangements
- The benefit of the child having a meaningful relationship with their grandparents balanced with the factors above
What Does Parental Responsibility Mean?
Parental responsibility is a phrase that covers all major decisions concerning a child, including:
- The welfare of the child
- Who will care for the child
- Living arrangements
- Deciding what school they attend
- Medical decisions
The Court may grant sole parental responsibility to the child’s grandparents, which means the grandparents will have the legal authority to make decisions regarding their grandchildren in all these areas without consulting the child’s parents.
Does Financial Assistance For Grandparents Exist?
Multiple benefits exist for grandparents who have sole parental responsibility or full custody of their grandchildren. These include:
- The Grandparent Child Care Benefit
- Child Support
- Family Tax Benefits
- Double Orphan Pension
Importance of Seeking Legal Advice
It is essential to keep in mind that grandparents’ visitation rights are separate from the rights of parent’s. As such, grandparents should seek their representation from an experienced family lawyer.
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.
More Articles
If you have any more questions about grandparent’s visitation rights or any other family law matters, head over to our blog section for more informative articles on a wide range of family law topics.
Alternatively, here are some of our newest articles linked below:
How Long Does It Take To Get a Divorce In Australia?
What Can You Do When a Parent Takes Your Child Without Permission
What Are The Best Interests Of The Child In Family Law?
Our YouTube
For more informative family law content, please check out our YouTube page. Alternatively, here are some educational videos linked below based on divorce and separation, which you may find helpful:
Factors to Consider Before Ending Your Relationship
How To Stop Your Spouse From Selling Your Property After A Divorce
