Grandparenting Rights

Grandparenting Rights

Grandparenting Rights

A grandparent can be significant in a child’s life, but do grandparents in Australian law have any rights when family relationships deteriorate? Relationship breakdowns often impact the rights of a grandparent.. These events can lead to a restructuring of the family, often in difficult and emotional circumstances. Many grandparents who find themselves in these situations fear that the child’s mother or father will prevent them from seeing their grandchildren when the relationship ends. The Family Law Act of 1972 does not refer explicitly to grandparent’s rights to see or care for their grandchildren. The child’s rights and the child’s best interests are the primary focus. The child has the right to spend time with those people who are important in their life, including a grandparent and extended family.

What Rights Do Grandparents Have?

The Family Law Act 1975 does recognize some of the crucial people in a child or children’s lives, including grandparents’ rights.  It indicates:

Children should be provided with the opportunity to maintain consistent communication with the people, specifically referring to grandparents, who are essential to their care, development, and welfare. Although maintaining contact with grandparents is recognized as important, grandparents do not have an automatic right to see or care for their grandchild. A grandparent can apply to the court to gain rights.

Custody And Access

Under the Family Law Act of 1975, a grandparent can apply to the family court if they want to access or gain custody of their grandchild or grandchildren for a parenting order. If the court believes that it is in the child’s best interest, an order will be granted.

It is the grandparent’s role to demonstrate to the court that the parents or parent cannot care for and meet the child or children’s needs. The following areas need to be considered:

a.    The parent or parents are unwilling to look after the child’s care, welfare, and development.

b.    The parent or parents do not have the capacity to care for the child.

c.     The parent or parents are not able to care for the child.

If a grandparent is going to follow this pathway seeking advice from a lawyer is advisable.

If a grandparent is concerned that there is evidence of abuse, that children are being neglected, or that there is an indication or proof of substance abuse, it is more likely that the court will favor the grandparents.   The court can provide an order that delivers full custody to the grandparents or shared custody with the parents. This decision will be based on the children’s best interests, given their present living situation.

Best Interests

What does the term ‘best interests’ of the child mean?

When referring to a child’s custody, the term ‘best interests’ means that all the decisions regarding the child are made to nurture and promote the child’s happiness, security, mental health, and emotional development.

For the court to decide the placement of the child into care and custody of grandparents is in the best interests of a child, different aspects are considered including:

a.    The protection of the child’s psychological and physical safety.

b.    The best way to protect the child from abuse, violence, neglect, or any risk that these things may occur.

c.     The sort of relationship that the child already has with each parent and grandparents.

d.    The benefits there are for the child to maintain a meaningful relationship with the parents and grandparents.

e.    If the child is financially supported and if that support can continue.

f.      If a parent or a grandparent can support the emotional and intellectual needs of the child

g.    The impacts of change on the child, both positive and negative.

h.    If there is any evidence of family violence or abuse.

i.      The child’s thoughts and views if they are old enough to convey their opinions and feelings.

j.      The attitude each parent and grandparents have towards the child.

The court will only find in the grandparents’ favor if they believe it is not in the child’s best interests to remain with the parents. Lawyers can supply legal advice and assistance if the matter goes to court.

What Does Parental Responsibility Mean?

Regarding family law, the term ‘parental responsibility’ means that parents have the duties, power, responsibility, and authority in regards to their children while they are under 18 years of age.

When grandparents are granted access to a child or children’s custody, then ‘parental responsibility’ refers to the grandparents having that legal authority, power, and responsibility that the parents usually have concerning a child. Being granted parental responsibility by the court permits grandparents to decide on behalf of the child without consulting the parents.

What Does Parenting Order By Consent Mean?

As mentioned earlier, grandparents do not automatically gain parental rights over grandchildren. In the Family Law Act 1975, however, grandparents are explicitly included as people who can apply for a parenting order. The arrangements are altered depending on the situation. For example: If the children have been living with the grandparents with the consent of parents, then it may be beneficial for the agreement to be formalized, providing the grandparents with a parenting order by permission. This consent would require an agreement to be drafted where both the parents and grandparents agree to the custody arrangement. When the agreement is created and signed, you must apply to the family court to approve the parenting order of consent.

The parenting order, made by the court, will address issues such as;

a. Where the child will live,

b. where they will spend their time,

c. how much time is to be spent with each parent or grandparent,

d. the allocation of parental responsibility, welfare, and childcare,

e. how the child will communicate with the people considered significant in their lives.

At times grandparents have concerns about the welfare of their grandchildren. If this is the case and they cannot gain a custody arrangement with the parents, they should contact local child protection agencies and the police. The children should be protected, and although this is a difficult step, it is in the children’s best interests.

What Is A Parenting Plan?

A parenting plan is a voluntary written document that details all the agreed arrangements parents and grandparents have made regarding a child. Parents and grandparents can create a parenting plan together and will recognize these in family law legislation. This process will put in writing visitation rights and possible things that are significant to their child’s care. However, they are not enforceable by law. Some parents and grandparents prefer this course of action as it means that agreement can be reached without going to court.

Help For Grandparent Carers

When grandparents take on their grandchildren’s care, they do not initially think of the support and assistance they may require. There is help at hand. Grandparents who gain full custody should seek financial payments from Centrelink to assist them in providing for the child or children’s needs. They can get assistance from Centrelink to find out which benefits will be most appropriate for them. If the child has a disability or medical issue, there will be further benefits available. They include:

a.    Grandparent Child Care Benefit.

b.    Family Tax Benefit.

c.     Child Support

d.    Double Orphan Pension

For a child with a disability or medical concerns:

a.    Carer payment, carer supplement, or carer allowance.

b.    Child Disability Assistance Payment.

c.     Carer Adjustment Payment.

Apart from financial assistance, there are numerous other support services available. If you contact the Australian Government Department of Human Services, they will tell you what is available in your area.

Summary

Grandparents can find themselves in a difficult situation when the relationship of one of their children breaks down. Grandparents can become caught up in the fallout and, as a result, lose contact with their grandchildren. Often those relationships are critical in the lives of both grandparents and grandchildren. The family law act certainly recognizes this. If you are in a situation where you want to ensure you can retain contact with your grandchildren, you can take steps, including being involved in the development of a parenting plan, parenting orders, custody, and access. Many family lawyers can provide you with advice. It is certainly worth doing your research before you progress, particularly if you intend to apply to the court or if you are concerned about the care welfare and development of the grandchildren.

Frequently Asked Questions

  1. What can parenting orders mean for grandparents?
    These orders will differ from situation to situation. For example, it may allow grandparents to have the child for weekends, overnight visits, or holiday stays.
  2. Is a parenting order the same as custody?
    A parenting order may allocate specific periods that the child can spend with grandparents. In contrast, full custody means the child will live with the grandparents. Shared custody means the child’s time will be divided between the grandparents and another party.
  3. Is custody and parental responsibility the same?
    No, these two things are not the same. If you have parental responsibility, it means you have the legal authority and responsibility the parents usually have and therefore can make significant decisions in the child’s life.
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