Grandparents can play a big role in the lives of their grandchildren, in many cases they can be the child primary caregiver or share many of the primary caregiving responsibilities.
If you’re in a situation where you might want to assume the caregiving responsibility of a grandchild, it’s important to understand your rights under Australian family law.
According to the Family Law Act 1975, a Grandparent is defined as the parent of the child’s mother or father. In most cases, a child will have four biological grandparents, but may also have non-biological grandparents if they have been legally adopted.
There are a few provisions under the Australian family law that grant grandparents right in relation to the care of their grandchildren.
Grandparent rights
Australian family law recognises the right of children to keep regular contact with the people who are important to their welfare, care and development. Grandparents are specifically considered apart of that category, although that does not mean that Grandparents have an automatic right to see, care for or be involved in the lives of their grandchildren. If Grandparents want custody of a Grandchild, they will usually need to apply to the Courts for access. It is usually a good idea to consult with a family law expert and get legal guidance in this situation.
Gaining custody
Under the Family Law Act, Grandparents are entitled to make an application for a parenting order if they want visitation right or custody of their grandchildren. Court will consider what is in the best interest of the child and grant an order if they consider the Grandparents role is important to the child’s development.
Common situations in which a grandparent may consider applying for visitation or custody of their grandchildren include:
- Situations where the parent is unwilling to care for the child
- Situations where the parent is unable or cannot care for the child
- Situations where the parent does not have the capacity to properly care for the child
Before the court can grant a parenting order for a Grandparent, they must be satisfied that the parent cannot give proper children to the child.
Courts are more likely to find in favour of a Grandparent in situations where abuse or neglect are evident. The court may give Grandparents partial shared custody, or full custody of their Grandchild.
Best interest of the child
There are a few key factors a court will consider when determining what is in the best interest of a child before they give Grandparents custody. Common considerations might include, what is in the best interests of the child psychologically or physically, whether the child will benefit from a meaningful relationship with their grandparents, what kind of relationship the child has with the grandparents and parents, whether the child will be financially supported or what kind of impact the change will have on the child.
The wishes of the child might also be taken into account if it is determined the child is old enough to input into determining the outcome.
Parenting order through consent
It is possible for grandparents to gain custody of children by getting formalised consent from the parents. Consent can be given with a formal signed agreement and approval by the courts.
Grandparents seeking access and custody of the grandkids should reach out and get legal advice and ensure they have a clear understanding of the parental responsibility attached to caring for a child.
Taking of the primary care of a child can be a difficult and stressful time, especially when done through the courts so get expert family law advice.