Perhaps one of the saddest consequences of family breakdown is when relations between parents become so strained that grandparents on either side are excluded from seeing their grandchildren. Either or both parents may ‘forbid’ their parents-in-law from interacting with the children for any of a multitude of reasons.
Under the Family Law Act 1975, grandparents lack any express or automatic right to maintain a relationship with their grandchildren when a family splits up, but under the Act’s guiding principle of “the best interests of the child”, a child maintains a right to see their grandparents. This means that when the family court makes an order in a parenting dispute, it takes into account whether it’s in the best interests of the child to include or exclude a grandparent in the child’s life.
The Act also allows grandparents to apply for access to their grandchildren, as well as be included in parenting plans, parenting orders by consent, and a parenting order made by the court, which we’ll explain further below.
Where a parent or parents demonstrate they are unwilling, unable or lack the capacity to care for their children, grandparents may also apply to the family court for custody of their grandchildren. If there is clear evidence of abuse or neglect, the court is more likely to grant the grandparents full custody of the grandchildren, otherwise the court needs to be satisfied that the parents are unable to meet the needs of their children.
More detail on avenues of access for grandparents
Where separating parents wish to avoid going to court – often the case where relations between the ex-couple remain polite and civil – they may create a parenting plan dealing with issues around where the children live and when, as well as visitation arrangements with grandparents. These plans are voluntary agreements, usually achieved through a mediation or dispute resolution process.
The flexibility of parenting plans mean there is nothing stopping a grandparent from asking for their needs in terms of seeing their grandchildren to be considered when a separating couple makes such a plan. But the fact these plans create no legal obligations and can’t be enforced means grandparents can be left in a vulnerable position if there is a later disagreement between the parents.
For this reason, some people may choose to apply to the court to have their parenting plan formalised by the court and turned into enforceable ‘consent orders’. Parents are legally obliged to comply with these orders, including any provisions about the visitation rights of grandparents. Should they not comply, as an aggrieved party a grandparent can apply to the court for it to make a ruling on the parent’s non-compliance, including any penalties.
In situations where parents need the court to decide on parenting arrangements, the court will take into account the terms of any previous parenting plan, including the inclusion of time for grandparents to see grandchildren. But a grandparent is also entitled to apply to the court for visitation rights. In deciding on this application, which will result in an order that is enforceable, the family court will consider:
- The views of the child, including whether they really want to spend time with the grandparent/s;
- whether the child considers the grandparent a significant part of their life;
- whether there is any risk of neglect or violence;
- an objective assessment of the relationship with the grandparents;
- what amount and sort of interaction the child has had with the grandparent/s up until now;
- whether the grandparent/s have the capacity to care for the child;
- whether the child’s parents have been unable to adequately parent the child due to family violence or neglect;
- the practical difficulty and expense, and any other factor the court considers relevant.
Grandparents applying for custody of grandchildren
In situations of family violence or neglect, as mentioned above grandparents may feel they also need to apply for custody of their grandchildren.
The court will again take a “best interests of the child” approach before making an order in favour of a grandparent for custody. This approach considers:
- Protecting the child’s psychological or physical safety;
- the likely benefit of a meaningful relationship with the grandparent/s;
- effects of the change in living arrangements on the child;
- what type of relationship the child has with both the parents and grandparents;
- how the child is, and will be, financially maintained;
- the evidence of any family violence; and
- the views of the child, depending on their age and maturity.
The benefit of legal advice
These are complex and sensitive matters. No grandparent really wants to interfere in the life and parenting ability of their child, but nor do they wish to be excluded from the lives of their grandchildren. In more serious situations of domestic violence or parental incapacity, grandparents may have to take on the role of the parent.
Seeking the advice and guidance of a legal representative with wide experience in this area is a wise course of action. They can help identify your rights as a grandparent and advise you on the best way forward in protecting those rights. At Twohill Lawyers we deal every day with family law matters such as parenting agreements, custody, children and domestic violence. Call us today on (07) 5571 1450 for a confidential and understanding appraisal of your situation.