You may find yourself in a situation where your child or their partner is refusing to let you see your grandchildren or if you are playing a significant role in the care of your grandchildren, threatening to take them away. As a grandparent, you do not have an automatic right to see or care for your grandchildren, but this does not mean you are unable to do anything.
It is not uncommon for grandparents to play a major role in the care and support of grandchildren due to the housing, drug, alcohol or mental health issues of their parent(s). Even if you have an amicable but informal agreement with the parents, there may be occasions where you wish to formalise the arrangement:
- To protect your grandchildren’s interests; or
- To allow you to better deal with doctors, schools and other institutions on the grandchildren’s behalf.
Australian Family Law allows a grandparent to make an application for a parenting order if they want access to or custody of their grandchild. Parenting orders are a legally enforceable option that can regulate your rights with respect to your grandchild.
What are Parenting Orders?
A parenting order is a binding and enforceable order of the court that must be adhered to by the parents and in this case, grandparents, that can only be changed by a further court order.
A parenting order may allow (amongst other things):
- Grandparents full or partial custody of grandchildren;
- Grandchildren to live, spend time, communicate and travel with a grandparent;
- Parents to be prohibited from removing or attempting to remove their children from their grandparent’s care; or
- Grandparents to obtain information regarding any school events, extra-curricular activities, or medical reports for grandchildren.
Applying for a Parenting Order
In situations where both the parents and the grandparents are simply looking to formalise their shared relationship with the child, they can apply for a parenting order by consent.
If the parties are unable to agree, grandparents may initiate court proceedings and make an application for a parenting order. The court will then decide on the application. In these circumstances, you will also be required to attend family dispute resolution mediation and demonstrate that a genuine effort has been made to resolve the matter outside of Court.
What will the Court consider when making Parenting Orders?
In all applications, the Court will consider the child’s best interests as paramount when deciding on the allocation of parental responsibility and grandparent’s rights. This includes:
- The need to protect the child’s psychological or physical safety;
- The benefit of having a meaningful relationship with their grandparent;
- How the child is financially supported;
- Whether there is evidence of any family violence; and
- If the child is old and mature enough, their views on the matter.
As a grandparent, you will need to give evidence addressing the following:
- Your personal/financial/employment circumstances;
- The history of your relationship with your grandchild;
- The nature of the breakdown of your family; and
- The nature and wishes of the child themselves, if age appropriate.
How can we help?
If you are being shut out of your grandchildren’s lives, it is important to obtain independent legal advice about your situation. We can help you understand your legal rights and responsibilities and explain how the law applies to your situation. If necessary, we can either draft consent orders or make applications for parenting orders and represent you in Court.
To find out how we can help you, call 1300 654 590 for a no-obligation discussion. Our experienced family law practitioners can answer all your questions.