Do you know your grandparents rights? When a couple with children under the age of 18 separate, they need to decide on parenting arrangements for their children. These arrangements don’t have to be written down or formalised.
If the arrangements are written down, a common way to do so is called a Parenting Plan. A Parenting Plan is an agreement formed by parents either by themselves or after family dispute resolution (mediation) with a family counsellor.
A Parenting Plan is not legally enforceable. However, the family court may take the agreement into account when making parenting orders for the children.
If parents want to formalise their agreement, they can apply to the court for consent orders, which include parenting arrangements.
Grandchildren have the right to contact with extended family members, such as grandparents. However, grandparents do not have automatic rights to access to their grandchildren.
Grandparents Rights – My child has just separated from their partner
Family dispute resolution
If you are a grandparent and you are concerned that you won’t be able to see your grandchild as often, the first step is to approach the parents and try to come to an agreement with them about access to your grandchild.
If you are having difficulty communicating with the parents or cannot come to an agreement independently, you can arrange family dispute resolution (independent mediation). The mediator can help you and the parents negotiate a Parenting Plan. Remember that it is the parents who need to agree on the plan, not the grandparent. So your requests will only be accommodated if both parents agree.
In order to formalise the agreed parenting arrangements, consent orders can be obtained from the court. If the court is satisfied that the arrangement is in the best interests of the child, the consent order will have the same binding force as if it had been made by a judicial officer after a court hearing.
Grandparents should seek legal advice from a family lawyer before applying to court for parenting orders. As mentioned above, grandparents don’t have any automatic rights to access their grandchildren.
If the parents cannot reach an agreement through family dispute resolution, or you are unhappy with the parenting arrangements and concerned for the welfare of your grandchild, you can apply to the court for parenting orders.
In most circumstances, you will need a certificate from the family dispute resolution practitioner that shows that mediation was attempted and unsuccessful before you can apply to court.
You won’t need to show the certificate if the matter is urgent, for example the child is at risk of abuse, or if circumstances such as disability have prevented you from participating in mediation.
When making parenting orders, the court will make a decision based on the best interests of the child. The primary factors for determining this are:
- The benefit to the child of having a meaningful relationship with both parents, and
- The need to protect the child from physical or psychological harm.
There are additional factors the court may consider as well. See the Family Law Courts page ‘Parenting cases – the best interests of the child’ for more information.
Grandparents Rights – My grandchild has been living with me
If your grandchild has been living with you under an informal arrangement, you may want to consider formalising the arrangement. You can do this by drawing up consent orders and registering them with the court as explained above. However, if the parents want to change those arrangements and have their child live with them again, then it would have to be a very extreme situation for the court to decide that a child live with their grandparents rather than their parents.
If there are existing parenting orders from the court that give you custody over your grandchild, the parents will need to apply to the court for the orders to be varied before they can take the child back into their custody.
Grandparents Rights – I’m concerned about my grandchild’s safety
If you are concerned about the safety of your grandchild, you can:
- Contact the police if there is an immediate threat.
- Contact the relevant child protection department in your State:
- Department of Family and Community Services (NSW)
- Department of Human Services (Vic)
- Department of Communities, Child Safety and Disability Services (Qld)
- Department for Communities and Social Inclusion (SA)
- Department of Health and Human Services (Tas)
- Department for Child Protection (WA)
- Department of Children and Families (NT)
- Department of Community Services (ACT)