Legal tips for grandparents seeking time with their grandchildren.
After a divorce or separation, or in some instances of family separation or conflict, we are asked what rights grandparents have to see their grandchildren. Whilst grandparents don’t have specific rights in terms of access, grandparents and other family members do have legal options available if they wish to request that their grandchild spends time with them.
Australian family law legislation places paramount consideration on a child’s best interests. This includes a child’s being able to have a meaningful relationship with people who have a significant role in their life, including grandparents. However, there is no explicit right regarding grandparents being able to spend time with their grandchildren.
If a child’s parents or guardians do not agree with continuing a relationship between their children and a child’s grandparents or other relatives, you may need to work with family lawyers to resolve the dispute. There are legal avenues when it comes to grandparents wanting to see their grandchildren, as well as options for an order for kinship care to be made if the child is at risk of sexual, emotional, physical, or psychological harm.
We commonly deal with two very different scenarios, and your legal options, which we will discuss below, depend on which situation you have found yourself in.
How Can Grandparents Secure Visitation Rights With Their Grandchildren?
As mentioned above, no specific enforceable law under the Family Law Act 1975 (Cth) gives grandparents the right to see their grandchildren without taking legal action. This also applies to other close family members, such as uncles and aunties. It’s distressing if you have enjoyed a close relationship with your grandchildren in the past and are having issues with maintaining contact due to family conflict, relocation or a relationship breakdown.
If a grandparent wishes to pursue visitation with their grandchildren, and communications have broken down with their parent/s or guardian/s, your options are:
- Invite the child’s parent or guardian to mediation or Family Dispute Resolution. This will ive both parties an opportunity to discuss their matter, with the support of a neutral third party. Your famil lawyer can also be present during this process.
- If mediation or dispute resolution is successful, you can apply to the Court to formalise the order if you wish to.
- You can still apply to the Courts for an order if mediation is unsuccessful. It can be uite a lengthy process, similar to obtaining parenting orders when parents are unable to agree on parenting arrangements. The Court ill consider the child’s circumstances and also the child’s relationship with any parties named in the application. For an order to be made, the Court would need to be certain that it is in the best interest of the child and prioritises their care, welfare and development.
The legal process can be time-consuming, and there is no guarantee of a successful outcome due to the lack of an ‘automatic right’ for grandparents in Australia.
Do grandparents have a right to temporary, partial, or full-time care of their grandchildren (custody)?
Yes – but only in some circumstances, which must be:
- In agreement with the child’s parents or
- If the Court determines that this is the most suitable care arrangement (kinship carers)
Relative/kinship care is a form of out-of-home care where the caregiver is either a relative (other than parents), considered to be family or a close friend, or a member of the child or young person’s community (in accordance with their culture).
Kinship Care In Australia – Australian Human Rights Commission
Once again, from a legal perspective, while Australian family law absolutely recognises the importance of parents, grandparents, and other significant people in a child’s life, all decisions made in the Court will centre on what is in the best interests of the child.
Not even birth parents have an absolute ‘right’ to have their child or children. They have a responsibility to care for and raise their children. Children have the right to be taken care of and the right to have meaningful relationships with their family.
Of course, parents generally raise their own children, and being a birth, adopted, or foster parent, partner of, or close family member is the standard and accepted family structure in Australia.
In almost all instances, birth or biological parents will be the ones to raise their children unless the parents:
- Have an informal or formal agreement with family members to help raise their children (due to work requirements, illness, etc.)
- Are unable to or unwilling to take care of their child
- Choose to adopt their child or children or have a surrogacy agreement in place
- Lose care of their children due to illness, addiction, abuse or neglect – or any other personal circumstances
- Lose care of their children to the other parent due to a Family Court order
- Give care to someone else by choice, with a formal or informal agreement
If the circumstances above apply, grandparents may be given partial or full care or request partial or full care.
When can a grandparent legally make full or partial care arrangements for their grandchildren without the parent’s permission?
If a parent, or parents, are unable to provide care for their children, a close family member may take on this role, temporarily or permanently. In many cu tures, grandparents are very active in ongoing daily care for their grandchildren, whereas this is less common in Australia.
If the child’s parent has not asked a grandparent to be active in their lives, and there are no issues of abuse, neglect or illness affecting the ability of a parent to raise their children, or Court orders in place, in the majority of cases, a grandparent does not have any overriding right to be involved in their grandchild’s life.
What is the process for putting a legal order in place?
The first step for grandparents seeking full or partial care is participating in mediation or Family Dispute Resolution with the parents of their grandchildren. If there is an urgent matter concerning the safety or well-being of a child, the Court must create a temporary or interim order. This may occur if a parent becomes unwell, is incarcerated, or is unable to be located, and a child’s living arrangements need to be addressed.
If the matter is not deemed urgent, grandparents can seek a court order to have set access or visitations with their grandchildren. Getting a court order for time with grandchildren is possible in Australian family law; however, there is no legal right for a grandparent to do so if the parent is protecting the best interests of their child. Australian laws do uphold the value of children having meaningful relationships with their grandparents and others in their family and close circle, but it’s not a basic right.
The Court will consider why a parent would not want their child to spend time with grandparents and prioritise what is truly in the best interests of the child or children. Taking legal action can be lengthy, costly and drawn-out, and it’s imperative to seek legal advice if you are in this situation. It’s also important that any parties involved in a legal process of this type think very carefully about what really is going to be best for children in a given situation.
The legal system can be very emotional to navigate, and it’s best to consider whether the children involved would benefit from this process before starting any type of proceedings.
As a grandparent, what can I do to see my grandchildren?
Step 1 – Talk to the parents of children, and let them know why it’s so important to you
Step 2 – Listen to any reasons and concerns the child’s parents have about you seeing their grandchildren and see if you can address them. Be willing to work with them.
Step 3—If you still cannot reach an agreement, seek legal advice. A family lawyer can discuss your options and advise you on how to best approach your matter.
Step 4 – Consider mediation or FDR to negotiate an agreement with the children’s parents.
Step 5 – Discuss formalising agreements reached with the other party if mediation is successful.
You can get a certificate to confirm this and begin a court application if it is unsuccessful.
Step 6—You can formalise an order in the Court or apply to have your matter heard by the Court. If you’d like legal advice on how to proceed with your matter, please contact our team.
Why Would A Grandparent Be Denied Access To Their Grandchildren?
There are multiple reasons that a grandparent who has a meaningful relationship with their grandchild may be denied the ability to visit them after a healthy relationship has been established. If the per on with the majority of care for the children is an ex-partner of the parent of the children, they may wish to cut off ties out of emotion, personal conflicts or due to relocation.
If grandparents are the parents of the person with primary care of the children, the person with care may no longer wish to engage with them. This may be due to personal disagreements or conflicts that would make it difficult for them to communicate, or it can also be due to concerns about the well-being of their children.
Some of the most common reasons for removing grandchildren’ with grandparents are:
- Previous family abuse issues
- Family conflict or family breakdown
- Disagreements on core values, religious views or parenting styles
- If a parent feels that visits with grandparents hurt the child
- Distance or relocation
- Interfering with a parent’s guidelines or undermining their house rules may create challenging behaviour on return (things like giving them foods that are generally avoided or letting them play unsupervised)
- Concerns over a grandparent’s health (memory issues, physical health issues, strong medications being taken, having diminishing sight but wanting to drive the children places)
Often, the issues are surmountable if there are no safety concerns and both parties are willing to work together.
What Can I Do To Address The Issue Of Not Seeing My Grandchildren?
If you are having severe conflict or differences with the parent (or parents) who care for your grandchildren, there are some avenues you can take. You may have already attempted to verbally negotiate this with the person who cares for the children, who may be your own child or maybe the ex-partner of your son or daughter.
- If possible, make time to discuss the issues at hand, and listen to any feedback or reasons you may be given.
- Be open to making some changes if necessary, such as working together for a common bedtime, respecting food choices, or addressing any safety concerns.
- Develop a plan of action that addresses any concerns and suggest an upcoming time to trial these.
- Be prepared to work on the parents and put aside as many differences as possible throughout the process.
In The Meantime, What Are My Other Options?
If you are still unable to spend time with your grandchildren, despite having attempted through the pathways above, you may need to accept the situation as it is, and try communicating your wishes again, later on.
During this time, you could consider a regular phone or video call if possible, write letters, and send appropriate gifts on birthdays or holidays. If there are any larger family gatherings, school or sporting events, this can also be a good chance to connect with your grandchildren in a neutral setting.
Most importantly, be open to working with the parent/s of your grandchildren where reasonably possible. Find ways to work together to maintain your bond, even if it requires patience and creativity. You may also need to consider applying to the Court for a Court order to spend time with your grandchildren. These can be difficult applications and you should seek independent legal advice prior to applying to the Court. If you want to discuss your matter further – or book Family Mediation or Family Dispute Resolution, please contact our team.
This is general information only. Please contact us for expert legal advice that considers your unique personal situation before making any decisions based on this article.
What else can you do when you are not allowed to see your grandchildren?
If you’re not able to see your grandchildren, it’s essential first to try to resolve the issue through family dispute resolution. You may engage a family dispute resolution practitioner to facilitate discussions between you and the parent or guardian of the child. If an informal resolution fails, you can seek a parenting order through the court, which may be possible if the courts can ensure it is in the grandchildren’s best interests.
What section of the Family Law Act addresses grandparents?
Section 65C of the Family Law Act 1975 addresses grandparents’ roles and responsibilities. This section outlines the importance of maintaining a child’s connection with their extended family and provides a framework for grandparents to seek court orders to facilitate contact.
What are the legal rights of grandparents in Australia?
In Australia, grandparents, under the Family Law Act 1975, are able to seek orders for contact or involvement in their grandchildren’s lives if spending time together is in the children’s best interests. They can apply for a parenting order or consent order to ensure they maintain contact with their grandchildren. Grandparents can also seek assistance through a family dispute resolution practitioner to help resolve issues without going to Court.
Do I have to let my kids see their grandparents?
While there is no legal obligation to let children see their grandparents, the Family Law Act encourages maintaining relationships with extended family if it is in the child’s best interests. The law also recognises that parents may have valid reasons for not allowing their children to see their grandparents, which will be considered in the event of grandparents taking legal action for access.
How do I get over not being able to see my grandchildren?
Dealing with not being able to see your grandchildren can be emotionally challenging. Seeking support from a family dispute resolution practitioner can help address the issue constructively. Additionally, focusing on maintaining communication through other means. By staying involved in their lives through calls, messages or letters, you can help to bridge the gap.
How often should grandparents be able to see their grandchildren?
There is no fixed frequency for how often grandparents should see their grandchildren; it depends on what works best for your family. If the court makes an order, factors including the children’s best interests, parental responsibility and existing family dynamics will influence the arrangement. Ideally, a consent order should outline a schedule ensuring meaningful contact while respecting all parties needs.
