What are Grandparents' Rights?
In any family law matter the role a grandparent plays in a child's life is crucial. The importance of a grandparent should not be underestimated, they often act as a source of support and stability for children especially if there is any form of confrontation in a child's life.
Grandparents often become a significant part of a child's life, particularly in instances of marital or familial breakdowns where a child's parents are under a severe amount of stress.
In these matters, Grandparents create an emotional relationship with children that is extremely beneficial to the care and protection of the child.
If you are a grandparent and worried that you may lose a relationship or contact with your grandchild following a relationship breakdown, this article will explain your rights as a grandparent and what you can do to maintain a solid relationship with your grandchild and/ or grandchildren.
This article will outline and help you understand grandparents rights in Victoria.
Grandparents rights in Victoria
Under Australian law, grandparents have the right to apply to the Family court to ask to spend more time with their grandchildren.
Under the Family Law Act 1975 there are no explicit rights for grandparents listed.
This does not mean these rights don't exist.
Within the Family Law Act 1975 parents are not necessarily given 'parental rights' but rather 'parental responsibility.'
This is because the Act gives utmost consideration to maintaining the child's best interests at all times.
There are two primary considerations to be considered to maintain this;
- The need to protect the child from all harms of abuse, harm or neglect
- The benefits of the child having a meaningful relationship with both parents
This also means that the court must consider these facts when making any decisions about grandparents having a meaningful relationship with their grandchildren.
The court must allow grandparents to have complete access to children if it is in the best interests of the child and will make orders accordingly.
Under Section 60B of the Family Law Act 1975 it explicitly states 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."
Under this, grandparents are considered to be people, along with any other relatives, who are concerned with the wellbeing, care, safety and development of the child.
Provided that the grandparents are not purporting any harm to the child they have a right to spend as much time with the child as they can, provided it is in the best interests of the child.
What are my visitation rights as a grandparent?
Grandparents rights in Victoria allow grandparents to make an application for visitation rights through the court, though there are various factors that the court will consider before granting this. These include;
- The benefit and advantage that enjoying a meaningful relationship with their grandparents will have on the child and/or children
- The opinion of the child, will they enjoy having a relationship with their grandparents? Do they want their grandparents to be a significant part of their life?
- The nature of the relationship between the child/children and their grandparents
- Any risk of violence or neglect
- The capacity of the grandchildren in taking care of the child/children, are they able to consider their emotional and intellectual needs?
- Any practical difficulties that may arise; e.g. limited mobility, expenses, age
- Any impact that the above will have on the child/children's life
If any of the above are impacted then the court will consider the rights of the grandparent to maintain a relationship with their grandchildren accordingly.
For example, a grandchild may be able to spend time at their grandparent's house but if a grandparent has limited mobility the sole care of the child may be undertaken by a different relative.
What are my rights as a grandparent in custody matters?
Grandparents rights in Victoria allow grandparents to participate as a party in parenting matters in the Family court.
Depending on the circumstances of the case and similar to the custody options available to parents there are multiple avenues for grandparents to explore during custody matters.
Parenting orders are the easiest way for grandparents to apply for parental responsibility as it goes directly through the court. The court will make decisions based on the best interests of the child and will consider the following:
- The living arrangement; where will the child live?
- Who has sole parental responsibility; who will the child be spending time with?
- Aspects concerning the child's welfare and developmental needs
- Communication; who will the child be communicating with?
A consent order is a written agreement that is approved by the court that formalises and makes a parenting agreement legally binding. This is an important option for grandparents as if there are familial conflicts during a custody case this will enforce and respect grandparents rights and ensure that nothing agreed upon is retracted.
While parenting plans are often made by parents, they are informal arrangements that are made during a divorce or separation that outline the parenting responsibility of parents during this time.
In matters where there is no conflict or disputes surrounding parenting, grandparents can be included in these plans to ensure they are able to share a meaningful relationship with their grandchildren.
These plans are ideally a written agreement, and as they are quite informal in nature grandparents should seek legal advice to ensure their rights are being respected.
While the law recognises and understands the significance of children having a stable relationship with their grandparents, before you begin any process of gaining more time with a grandchild you should obtain legal advice about your rights and responsibilities.
Every family law situation is unique.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.