Grandparent custody assistance on the Central Coast
You may be a grandparent who is caring for or raising your grandchildren, you may be concerned about your grandchild’s safety or well being, or you may have been stopped from seeing your grandchildren and would like to know what you can do about it. You do have legal options.
The Family Law Act 1975 applies across Australia to separation and divorce, division of property and with whom children live and spend time. Grandparents can use the Family Law Act to apply to the court for orders that their grandchildren live or spend time with them. You can do this whether the parents of the children are together or separated.
The Family Law Act acknowledges the importance of children having a relationship with their grandparents. Grandparents are specifically mentioned in the Act as being able to apply for court orders regarding their grandchildren. While the term ‘grandparents’ is used, this information also applies to other relative carers, such as aunts and uncles or other family members who are caring for or raising children.
It is also important to be aware that while a relationship between grandparents and grandchildren is acknowledged to be important, this does not mean that grandparents (or indeed parents) have an automatic right to have contact with children. The Family Law Act makes it clear that what is in the best interest of the child is always the main consideration when it comes to decisions about parenting.
WHEN PARENTS SEPARATE
Most separating parents can agree about the various aspects of their children’s lives – who the children will live with, spend time with and communicate with, where they will go to school, who they spend holidays with, decisions regarding medical treatment and so on. This can be done informally, without any documents and without going to court. These decisions can also be put into a written agreement called a Parenting Plan that sets out the arrangements for the children. Parents can make the agreed arrangements for the children more formal by writing up what are called Consent Orders and registering them with the court.
You may feel confident that you will continue to have the same level of contact with your grandchildren if their parents separate. If you are not confident that this will happen you can talk with the children’s parents about including you in a Parenting Plan or in Consent Orders if they are going to have these documents drawn up. However the best interests of the children must always be taken into account and the practicalities of implementing the arrangements need to be considered.
If the parents can’t agree on the arrangements for the children between themselves, or with the help of a family dispute resolution service, they can apply to the court for Parenting Orders. If you and the parents cannot agree on what contact you will have with the children you can also apply to the court for Parenting Orders about your grandchildren.
Parenting Orders can deal with:
- where the child lives
- who they spend time with
- who has parental responsibility
- what communication the child is to have with other people, including by telephone or email
- any other aspect of the child’s care, welfare and development.
Courts decide what is in the best interests of the child by evaluating:
- the benefit to the child of having a meaningful relationship with both parents and grandparents
- the need to protect the child from harm
- the views of the child (the importance given to the child’s views will depend on their age, maturity and level of understanding)
- the child’s relationship with parents and others, including grandparents and other relatives
- each parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent
- the effect of any change to the current situation on the child
- the practical difficulties and expense involved in ‘spending time with’ and ‘communicating with’ a parent or grandparent
- the capacity of each parent and others to provide for the child’s needs (as a grandparent this may include your health, age and financial circumstances)
- the maturity, sex, lifestyle and background (including culture and traditions) of the child and parents
- each parent’s attitude to the child and to parenting
- any family violence involving the child or a member of the child’s family
- the desire to make an order that is least likely to lead to further court proceedings
- any other circumstance the court thinks relevant.
Although you have a right to apply to the court for Parenting Orders this does not mean that the court will make an order in your favour. You should get legal advice before you do this.
STOPPED FROM SEEING YOUR GRANDCHILDREN
Sometimes grandparents are stopped from having a relationship with their grandchildren. This can happen where the relationship with your own child has broken down (but the parents’ relationship remains intact), or where the parents have separated and one parent refuses to let you have anything to do with your grandchildren. Grandparents do not have an automatic right to have a relationship with a grandchild. However, anyone who has an ongoing relationship with the child, or any other person who can show that they are concerned with the care, welfare or development of a child (including grandparents) may apply to the Court for Parenting Orders. A Parenting Order can be an order that you can spend time with or communicate with the child. It will be up to the Court to decide what will happen, based on what is in the child’s best interests.
If your child and/or their partner is refusing to let you see or speak to your grandchild you can take steps to try to change the situation. The first step is to seek legal advice. The information on this website is general information only. Please contact us to gain advice specific to your circumstances.
Going to court should always be the last option as it can be stressful and expensive. Before you do anything you should talk to the parents and try come to an agreement about how and when your grandchildren see or have contact with you. Not only is it in everyone’s interest to resolve disputes without taking legal action, but the Family Law Act requires people to try family dispute resolution first. Family dispute resolution 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. 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 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 will have to apply to court for an order that you can spend time with or communicate with your grandchild. You can only lodge an application with the court if you have a certificate from an accredited family dispute resolution practitioner to show that dispute resolution was attempted.
You should get legal advice before taking legal action, including advice about how strong your case is; what forms and documents you will need to lodge with the court to support your case; what orders you should ask for; which Court you should start the case in and the costs of taking legal action.
In some cases the Court can order that an independent children’s lawyer be appointed to represent the child’s interests. That lawyer’s role is to form an independent view of what is in the child’s best interests and make the Court aware of those interests. The Court can also order a Family Consultant (normally a counsellor, social worker or psychologist) to interview and observe the parties and the child and prepare a Family Report for the Court.
It can take more than 12 months from the date you apply to the Court for final orders to be made, depending on the complexity of the case. However temporary orders can be made in the meantime.
CARING FOR YOUR GRANDCHILDREN
If you are caring for your grandchildren with the informal agreement of the family you may want to think about formalising the arrangement. You can do this by putting it in writing with both parents (getting Consent Orders) and registering that with the Court. This will clarify the arrangement and help if there are any disputes down the track about the care of the children. You should get legal advice about this.
If you have been caring for your grandchildren informally and you don’t think it would be in the best interests of the children to resume living with their parents, you will need to think about starting court action to get orders that the children are to stay with you. Before you can apply to the court you will need to seek legal advice and attend dispute resolution with the parents of the child if possible. If there needs to be a hearing the Court will decide what would be in the best interests of the child.
If there are already court orders in place that state that the children are to live with you and the parents wish to have the children back with them, they will need to go back to Court to apply to have the orders varied. The parents will need to show the Court that their circumstances have changed since the orders were originally made, and that it is in the children’s best interests for them to be returned to them.
Stopped from seeing your grandchildren
Caring for your grandchildren
Concern about your grandchild's safety and well-being
- Talk to the police
- Consider taking legal action under the Family Law Act (You should get legal advice before you do this).
- Report your concerns to the Department of Family and Community Services (FACS)
If FACS has parental responsibility for the child and you wish to have the child placed with you, FACS will need to assess you and your household to make sure that you will provide a safe and satisfactory placement for the child. This is the case even if you have been the person who has cared for your grandchild informally in the past. If you wish to have the child placed with you then you should tell FACS as soon as possible.