Your rights as Grandparents

Case Study

Beryl was 60 when her daughter, Susan had her first child, Jack.

  • At the time, Susan was living in an unstable de facto relationship and had some difficulty holding down a job because of a slowly worsening drug habit;
  • Beryl saw her grandson Jack frequently in the first few years as her daughter would often go away for days with her de facto without any explanation;
  • At one point when Susan’s de facto was sent to jail, Beryl became increasingly concerned about her daughter’s ability to care for Jack as she often had no money;
  • Jack was becoming more introverted and missing a lot of school. Now Susan as well was refusing to let Beryl see Jack; and
  • Beryl was anxious to do something for Jack’s sake but didn’t know where to turn or what her rights were.

Does the law recognise the rights of grandparents?

As many of you will be aware, grandparents depend on the co-operation of their adult children to be able to see their grandchild/grandchildren. However, what happens when the relationship between you and your adult children turns sour?  Do you as grandparents have the right to spend time with your grandchildren?

If a parent of a child is denying a grandparent contact with a grandchild the law can help.

The Family Law Amendment (Shared Responsibility) Act 2006 now recognises the child’s right to spend time with other important people in their life, which includes grandparents.

What if my adult child refuses to let me see my grandchild?

The law recognises that a child has the right to spend time on a regular basis and communicate with both their parents and other people significant to their care, such as grandparents and other relatives. When making orders, the Court also has to take into account the nature and relationships of the child with other persons, including grandparents.

So while there is no automatic right to see your grandchild, they do have a right to spend time with you if it is in their best interests. Therefore the Court can consider your role when making decisions about a child’s future care and living arrangements.

Should I try negotiating with my adult child?

Of course, it is always preferable that these issues are resolved amicably and informally between the parties.

You could suggest mediation so that an agreement can be reached or a Parenting Plan can be entered into. Parenting Plans are agreements which deal with where a child lives and who they spend time with. This can include grandparents and must be agreed to and signed by both parents. Although these types of agreements are not binding or enforceable they may be considered by the Court if the matter progresses.

Can I go to Court?

If an agreement is reached, grandparents can now apply to the Family Court for a range of orders in relation to a grandchild irrespective of whether it is a child of a marriage or a de facto relationship.

Grandparents would apply as a “person concerned with the care, welfare and development of the child.” You would need to file an Application with the Court along with supporting material.

You could seek:

  • Contact (or access) with a grandchild;
  • Parental responsibility of a grandchild (which means that the grandparents will be able to make long-term decisions relating to such things as health care or education);
  • An order for the recovery of a grandchild which has been taken; or
  • An order requiring someone to say where a missing grandchild is.

Given this, remember that the primary responsibility for children lies with their parents and the law will always consider the best interests of the child as the paramount concern in dealing with their welfare.

What will the Court consider?

Each matter is decided depending on the circumstances however the Family Court will always and ultimately consider what is in the best interests of a child before making any order in relation to a child.

In assessing a grandparent’s application, the Court will consider a number of factors including:

  • The age and wishes of the child;
  • The age and health of the grandparent;
  • The bonding or relationship between a grandparent and the child;
  • The financial circumstances of the grandparent; and
  • The status and circumstances of the parents.

What else should I consider?

While there are avenues available in relation to your grandchildren, it is very important to consider the following:

  1. If you are seeking parental responsibility of a grandchild think through the practical and financial factors you will have to take into account. Can you afford to care for a child full-time?
  2. Balance your concerns for your grandchild with the irreparable harm that legal proceedings will have on the family generally. You may damage the relationship with your adult children beyond repair.
  3. Does your age and health equip you for the rigours and demands of caring for a grandchild?
  4. If you have serious and legitimate concerns about your grandchild could they be better addressed by reporting your concerns to a child welfare agency rather than you taking on the issues yourself?
  5. Is there a better way to handle it than the law – such as mediation or even discussion?
  6. Before you do anything get some relevant information and some good advice.

If you have any further questions or queries in relation to your rights as a grandparent, please contact our Elder Law Team at CRH Law.