As part of our busy family law practice, we frequently encounter many delicate and complex custody and parenting family law matters. One area that often raises questions from our clients revolves around grandparents' rights to custody of their grandchildren.
In Australia, the Family Law Act 1975 (Cth) governs family law matters, including those related to child custody. The word “grandparent” is mentioned 15 times in the Act and the legislation recognises that children have a right to “spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”. One of the most important sections of the Act – Section 60CC, which sets out how the Court determines what is in the best interests of a child, refers to grandparents on three occasions, which speaks volumes of the importance the Court assigns to the relationship between grandchildren and their grandparents.
However, one common misconception is that grandparents automatically have rights to custody or access to their grandchildren, irrespective of the specific circumstances. In reality, while grandparents are important figures in a child’s life, they don't inherently have any custody rights. The rights of the grandparents are usually directly linked to their child’s right to custody of the grandchildren and they often spend time with their grandchildren by reason of these custody arrangements that exist between their child and his or her former partner in relation to their grandchildren.
Seeking Custody as a Grandparent
The above situation may not always be applicable and often grandparents have to take matters into their hands and actively pursue their rights to spend time with and communicate with their grandchildren. Our experienced family lawyers can guide clients through every step of the process of seeking custody or access to their grandchildren. This typically involves making an application to the Court, unless agreement can be reached outside of Court.
It's important to note that the Court will only grant full custody to grandparents in extreme circumstances, if it believes it's in the child's best interests and by taking into account the considerations set out in section 60CC of the Family Law Act. If there is no established risk of harm for the child to live with one of the parents, the Court would usually grant most or all custody rights to such parent as opposed to a grandparent, provided it is practicable and in the best interests of the child. It is normally significantly easier to seek some form of access to the child, as opposed to full custody, if you are a grandparent.
When determining the child's best interests, the court will consider a range of factors including but not limited to:
The benefit of the child having a meaningful relationship with parents;
Any physical or psychological risks of harm to the child;
The nature of the relationship between the child and the grandparent;
The capacity of the grandparent to provide for the needs of the child, including emotional and intellectual needs;
The views of the child, considering the child's maturity and level of understanding;
The effect on the child of any changes in their circumstances, including separation from a parent or grandparent they have been living with.
We have prepared a list of Frequently Asked Questions (FAQs) on this topic for your general guidance:
1. Do grandparents have legal rights to see their grandchildren?
Under the Family Law Act, one of the principles set out in section 60B(2) is that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives). Although, grandparents do not have an automatic right to the custody of their grandchildren, they are able to apply to the Court to seek enforcement of the principle set out in section 60B(2).
Section 65C states that a parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Section 64C of the Family Law Act also states that a parenting order in relation to a child may be made in favour of a parent of the child or some other person.
2. How can a grandparent get custody of a grandchild?
To apply for custody, grandparents can file an application in the Federal Circuit and Family Court of Australia, provided there are grounds that would warrant such application, which generally must be first assessed by a family lawyer. This process is complex and requires a detailed understanding of the law, so we recommend seeking legal advice.
Any such application to the Court must be able to prove that it's in the child's best interests to live or spend time with the grandparents. For more details about Parenting Orders, you can also refer to this resource from Legal Aid NSW - https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/are-you-a-grandparent-your-legal-questions-answered.
3. Do grandparents have to go through mediation before going to court?
In most cases, grandparents seeking custody or visitation rights will need to participate in Family Dispute Resolution (FDR) or mediation before going to court. Exceptions may apply in cases involving family violence or child abuse. It is a requirement for most parenting matters that a section 60I certificate is obtained at the FDR event before commencing any legal proceedings.
4. What factors does the court consider when determining the best interests of the child?
The court takes into account a range of factors, including the nature of the relationship between the child and the grandparent, the ability of the grandparent to meet the child's needs, the views of the child, and the impact of any changes on the child. To understand this better, you can refer to section 60CC of the Family Law Act.
The above are some of common questions grandparents have about their rights. However, every situation is unique. For personalised advice, contact our Sydney family lawyers. You may also wish to consult the comprehensive resources available at Legal Aid NSW and LawAccess NSW.
Conclusion
Navigating custody and parenting family law matters can be challenging, especially when grandparents are seeking rights to their grandchildren. It's crucial to have a knowledgeable and experienced Sydney family lawyer by your side to guide you through this process.
Remember, every situation is unique, and while this guide provides a general overview, it's not a substitute for personalised legal advice. We're committed to helping you understand your rights and responsibilities as a grandparent, ensuring the best possible outcome for you and your loved ones. Contact our office and speak to an experienced family lawyer today for a free consultation.
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