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QLD How to Obtain Guardianship of My Grandson under Family Law?

Discussion in 'Family Law Forum' started by alyssia rowe, 3 November 2015.

  1. alyssia rowe

    alyssia rowe Member

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    Hi, I want to find out if I can remove my grandson from his mother's care as she is not caring for him properly, and what I can do under Family Law to obtain legal guardianship of my grandson.
     
  2. AllForHer

    AllForHer Well-Known Member

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    She is not caring for him properly how? Is he in physical danger?
     
  3. alyssia rowe

    alyssia rowe Member

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    It appears from what her friends have had to tell me that he is. She sleeps in till 10am, sometimes 11am while he runs around the room occupying himself. The last few weeks, her housemate has been going in & changing his nappy & feeding him his breakfast.
     
  4. AllForHer

    AllForHer Well-Known Member

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    Four problems I see so far.
    1. Your evidence is hearsay, which, while admissible under the less-adversarial rules for evidence that apply to family law matters, won't hold credibility enough to persuade a court that a child should be removed from a parent's care.
    2. The fact that your evidence is hearsay and that you have not witnessed it for yourself leads me to question the extent of your involvement in the child's life as yet. You would be facing an uphill battle to argue that it's in a child's best interests to be removed from their primary attachment figure and placed into the care of a grandparent whose only knowledge of the child's lifestyle and routine is what a friend of the mother has told you.
    3. The complaints you've listed about the parenting style are not serious enough to persuade the court that it should remove a child from the care of the parent.
    4. You're a grandparent, which means the child has rights to spend time with you, but you don't have the presumption of parental responsibility and are therefore unable to make decisions about the child unless the court orders otherwise. This is a very difficult order to have made.
    Kids have a legal right to know, spend time and communicate with both parents on a regular basis, and parents have the benefit of a legal presumption of parental responsibility, which means the parents are automatically responsible for decisions about their children. To rebut the presumption that the parents should be in charge of decisions about the child, you would basically need to show that the child is at risk of harm caused by family violence, neglect or abuse.

    While you may not agree with the mother's parenting style, it's unfortunately not your decision to make, and it doesn't sound like the child is at risk of harm caused by family violence, neglect or abuse. To the contrary, I would argue the child would be at more serious risk of psychological harm if he were to be removed from the care of the primary attachment figure, that being the mother.

    Sorry if this isn't what you want to hear, but I would hate for you to waste time and money on court proceedings that have a minuscule chance of success.

    If you do want to pursue orders, though, your first step is to organise a family dispute resolution conference with the mother to try and negotiate a settlement for the dispute without court intervention. If you're unable to reach agreement, you can file for parenting orders through the court. The court will only make orders that it deems to be in the best interests of the child in accordance with considerations listed under section 60CC of the Family Law Act 1975.
     
  5. alyssia rowe

    alyssia rowe Member

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    Prior to my daughter moving interstate, I have seen at least witnessed an incident of his care. I arrived to pick my grandson up for the weekend to find he had a shoe print on his leg and when I asked her what happened. She said she had smacked him with a shoe that morning because he refuse to have a sleep and was throwing his toys around the room and would not stop crying
     
  6. AllForHer

    AllForHer Well-Known Member

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    Did you report the incident to child protective services? Did you report the incident to the police? What evidence do you have of the incident other than your word?
     
  7. alyssia rowe

    alyssia rowe Member

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    I did report it. They saw no mark when they went to see my grandson and within 48hrs my daughter had moved interstate. I am going to see if she will move back so that I can help her rather than have my grandson removed from her care.
     
  8. AllForHer

    AllForHer Well-Known Member

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    That sounds like a better idea, and more likely to be successful. Good luck.
     

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