Do Grandparents Have Rights In Family Law?

Separation and divorce are difficult for families who go through it particularly, and it can be difficult for Family Law to to endure. If parents of children have been separated or divorce, it could sometimes affect the relationship that the child has to their parents or other relatives who is important to the child, like sibling, step-parents aunt or uncle or even the cousin.

There is no doubt that grandparents have a major role to play in their children’s lives. But, due to reasons that are not related to the grandparent, they are suddenly are excluded from their grandchild’s lives, especially when both parents don’t agree, or have gone through a rough divorce and are no longer able to keep any contact he is able to have with their grandchild.

In this moment you might be wondering what your rights as a grandparent. what do you have to do in this scenario?

Grandparents are entitled to rights under the Family Law Act 1975

As per the Family Law Act 1975 (“the Act”) The Family Law Act 1975 (“the Act”) recognizes that children have the right to visit and interact with other significant people in their lives, in addition to their parents, for example the child’s grandparents (or other extended family lawyer Sydney members like a step-parent, sibling, aunt or uncle or niece or the child’s cousin).

The Act says:

“children are entitled to spend time in a regular manner communicating regularly with their parents and any other persons who are important to their well-being and growth (such parents and relatives).”

But, notwithstanding this the Act does not grant grandparents an automatic right to take care of their grandchildren.

Now, you’re probably thinking, what else could I do?

Parenting Orders under Australian Family Law

Who is eligible for an order for parenting?

In accordance with the Act any grandparent or other person who is concerned about the child’s welfare, care or development, is granted the ability to apply for an order of parenting.

How do you make a parent directive?

A parenting order is an order issued by the court regarding the parental arrangements of a Family Law and generally addresses matters such as:

  • The child’s parents will decide where and where they will be.
  • The time and frequency of communication that the child will spend with someone apart from the parent (such for example, grandparents).
  • The distribution of the parental responsibility.
  • Other aspects of child care, or growth for the child.

It is an legal requirement which all parties must abide with.

If you’re a parent, and your child is unwilling, unable, or doesn’t have the capacity to take care of their grandchildren or if your child’s ex-spouse has not allowing any rights to visit your children, then you may request a parenting order before the court.

Parenting orders are also granted by grandparents who aren’t just seeking visitation rights but also when the grandparent wants control (whether part or full) of their children. This can be the situation in cases where the child has been neglected, abused, or violence from the family.

If a parenting decree is granted by the court to the benefit of an adult grandparent, the parenting order may contain certain arrangements which will allow the grandparent permitted to visit their grandchild on specific days. These visits might be every week, fortnightly or even monthly. You’ll be asked, when filing an application to the court for a parenting decree to state what order you’re seeking regarding the amount of time and frequency you would like to have with your children.

But, it’s not as straightforward as it seems since there are certain things that the court needs to be aware of before granting the parenting order.

The Child’s Best Interests

Before a court is able to decide whether or not to issue an order of parenting with regard to the health and well-being of children the court must be mindful of the most important concern, which is the best needs for the child.

What is the process for determining by the court what’s in the best interest of the child?

When deciding what’s in the child’s best interest the court will consider the following main considerations:

  • The benefits to children of having a positive relationship with their parents.
  • The need to safeguard the child from physical or mental harm from being exposed or subjected to abuse violence or neglect in the family;

After the court has considered the two main considerations above The court will then take into consideration additional factors including:

  • Any mature viewpoints that are expressed in the opinion of the child (subject to consideration considering their age);
  • The type of relationship a child has with their parents, grandparents, or any other family members;
  • The impact on the child is any separation from parents , grandparents, or any other relatives the child is living with;
  • The ability of the parents and grandparents of the child to meet the child’s mental and emotional requirements;
  • The maturity of the child.
  • If the child is Aboriginal or Torres Strait Islander;
  • Family violence.
  • Other elements the court considers are relevant

In spite of this possibilities, there are other alternatives that a grandparent could think about instead of engaging in a litigation-based approach by making an application to the courts for orders on parenting. There could be a possibility, for instance that parents and grandparents of children are able to come to an agreement on the arrangements for care of children, which could be recorded in writing with the court, through filing an application to the court for consent to parenting orders.

What is Parenting Consent orders?

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Consent orders for parenting are the orders which are negotiated between the grandparents and parents of the child/ren as it relates to the parenting arrangement.

An order to consent for parenting is a decision made in the Court and has as much legal weight as any other decision the court issues at an hearing.

As opposed to submitting an application to the court to get a parenting decree, that would require hearings with the court Parenting consent orders don’t require hearings since the parties are coming to a common decision in regards to the appropriate arrangement, care, and welfare that the kids will receive.

If the children’s parents or grandparents reach an agreement and wish to sign parenting consent orders The court will decide if granting consent orders is best for the child.

If the court isn’t convinced that the agreement serves the highest interest of children they won’t make Consent Orders.

Instead of going to court, in the event that you’re a grandparent and you have reached an agreement that is mutually beneficial with the parents of your grandchild You may want to sign an agreement on parenting together with parents of your child, which protects your rights to your grandchild’s visit.

How do you create a parenthood Plan?

Contrary to a parenting decree, or parenting orders made with consent the parenting plan for children is not drafted in court. It is recognized by the Act but it isn’t legally binding.

The parenting program is an informal written agreement that is that is signed and dated by the parents of both children.

A parenting plan addresses the above-mentioned issues like:

  • The child’s parents will decide where and in what area they will reside.
  • The time and frequency of communication that the child has to have with someone apart from the parents of the child (such for example, grandparents).
  • The distribution of the parental responsibility.
  • Other aspects of child care, or growth that the child may require.

In this way, a parenting plan will outline the arrangement that grandparents and parents have negotiated with respect to the child’s care. This is an alternative method for a grandparentto avoid having to attend the courthouse, to get access rights to their grandchild/ren

A parenting plan may also be altered at any point as long as both parents have apprehensively agreed to amend the plan.

In spite of the above however, if you’re a grandparent looking to visit your grandchild, consult a lawyer and make sure that you are aware of the responsibility of caring for children.

Disclaimer

The information provided in the article are meant to be purposes of general knowledge only. It should not be relied on for legal counsel.

Contact us: 02 8999 1800 or info@cominoslawyers.com.au.