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the rights of grandparents to have access to their grandchildren and custody applications

Grandparents Rights In Family Law Cases

The Rights of Grandparents in South Australia

Often times grandparents play a significant role in a child’s life and may even be a child’s main caregiver. However, there are times when they may find themselves stuck in the middle of a family law dispute. Unfortunately, the relationship between grandparents and their grandchildren can sometimes be interrupted by the child’s parents divorce or separation. Therefore, as a grandparent it is important to know your rights to see and care for your grandchildren.

The Family Law Act 1975 (Cth) affords grandparents rights to their grandchildren. Under the Act, a grandparent is the parent of a child’s mother or father. Typically, a child will have up to four biological grandparents, but may also include non-biological grandparents.

Rights of Grandparents

In 2000, the Howard government changed the Family Law Act 1975 to emphasise “shared parenting” of children. These amendments also provided grandparents the right to seek overnight, partial or total care of a child. Before these amendments were made, grandparents were not explicitly mentioned in the Family Law Act.

The Act provides that children have the right to maintain regular contact with people that are important to their welfare, care and development. Grandparents are explicitly mentioned as being included in the category of people the child should maintain contact with.

However, this does not give grandparents an automatic right to see or care for their grandchild. What it does provide, is the right to apply to the Court for orders. This is known as standing.

Grandparent’s Standing

If you are a grandparent and are suffering from the breakdown of a family relationship (in particular relating to your grandchildren) you may apply to the Court for orders that your grandchildren live or spend time with you. The two most common types of orders our Adelaide Family Lawyers are asked to draft are:

  • Applications to spend time with and communicate with the grandchildren: These kinds of applications are usually made when the parents prevent the development of a meaningful relationship between the grandparents and grandchildren.
  • Applications to obtain parental responsibility for the children and orders relating to who the children will live with: These kinds of applications are usually made when both parents are unable, unwilling or lack the ability to care for the children.

As a grandparent, you have this standing to seek orders whether or not the child’s parents are together or separated. This is because the Family Law Act now acknowledges the importance of children having a relationship with their grandparents.

Is your child or their partner preventing you from seeing your grandchildren?

Sometimes grandparents are prevented from developing a relationship with their grandchildren. This may occur where:

  • The parents have separated and one parent refuses to let you have anything to do with your grandchild;
  • You were the primary caregiver for the grandchildren and parent returns to take the children back into their care; and
  • The relationship with your own child has broken down and the parent’s relationship remains intact.

The Best Interests of the Child

The primary focus of the Family Law Act is for the right of children to know and be cared for by both parents and other people significant to their care, welfare and development, such as grandparents and other relatives.

In making a decision relating to parenting, the Court regards the “best interests of the child” as a paramount consideration. It may be necessary to apply for access or custody of the grandchild where the parent is:

  • Unable to care for the child;
  • Unwilling to care for the child;
  • Lacks the ability to care for the child;
  • Experiencing significant mental health issues;
  • Using drugs; or
  • Abusing the child

Where there is evidence of substance abuse, neglect, abuse, or other serious concerns the court may consider an order in favour of a grandparent.

Were you caring for your grandchildren and the parents want them back in their care?

If you have an informal agreement with your family for the care of your grandchildren you may want to consider formalising the agreement. We recommend putting the agreement in writing with both parents and registering it with the Court. This is called a Consent Order.

Formalising the agreement clarifies where you stand and may assist if disputes arise in the future about caring for the children. Our Adelaide Family Lawyers can assist you by drafting Consent Orders.

If you have been informally taking care of your grandchildren and think it is not in their best interests to resume living with the parents, you may consider starting court action to seek orders that the children remain with you. However, before commencing legal action you may be required to attend Family Dispute Resolution (“FDR”). FDR is where an independent person who is trained to help families discuss their differences tries to help you explore possible solutions with each other. This is also called mediation or conciliation.

There is no requirement to attend FDR if the children are at risk of abuse or neglect.

If the mediation is successful the agreement about the time you are to spend with your grandchild can be written up in a Parenting Plan or even Consent Orders which can then be lodged with the Court. If you are not able to resolve the dispute about contact with your grandchild through mediation you may have to apply to the court for an order that you can spend time with or communicate with your grandchild.

What Assistance is Available to Grandparent Caregivers?

A grandparent who has full custody of grandchildren may apply to Centrelink for financial payment to assist with the care of the child including:

  • Grandparent Child Care Benefit;
  • Family Tax Benefit;
  • Double Orphan Pension; and
  • Child Support.

If the grandchild suffers from a disability or medical condition, the grandparent may also apply to Centrelink for:

  • Carer Payments;
  • Carer Supplement;
  • Carer Allowance;
  • Child Disability Assistance Payment; and
  • Carer Adjustment Payment.

How can a Family Lawyer help?

If you are a grandparent and are concerned about the care or welfare of your grandchild, or wish to formalise the caring arrangements you currently have in place, call the Adelaide Family Lawyers at Georgiadis Lawyers on (08) 8210 5400 or send an email to lawyers@georgiadis.com.au to arrange for a free no obligation 30 minute consultation.

Georgiadis Lawyers is a Family Law Firm based in Adelaide, South Australia and practises in all areas of Family Law. We get it done!

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