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When a relationship breaks down, how do you preserve the bond with your grandchildren, and will the law offer any help?
When Hillary Clinton quoted the African proverb “It takes a village to raise a child, ” she acknowledged what you probably already know as a grandparent: you play a significant role in nurturing, educating and establishing a sense of community for your grandchildren.
However, if the parental relationship breaks down, the bond you enjoy with your grandchildren can become uncertain or suddenly cut off. So, what are your legal rights as a grandparent after a separation? Will Australian family law help to preserve your special relationship with your grandchildren?
What does the law say about grandparents?
In Australia, the Family Law Act (the Act) regulates family law issues.
The Act recognises that grandparents can play an important role in a child’s life, along with other relationships such as step-parent, brother, sister, uncle and aunt. In some situations, it also recognises kinship carers, who may be extended family members or kinship groups in the child’s community. Non-biological grandparents may also play a key role, for example, when a child is adopted.
The Act says that:
children have a right to spend time on a regular basis with, and communicate on a regular basis with … people significant to their care, welfare and development (such as grandparents and other relatives) …
Do I have a legal right to see my grandchildren?
Even though the Act recognises the importance of the grandparental relationship, there’s no automatic right for a grandparent to spend time with or communicate with their grandchildren. It’s a source of significant distress to many grandparents who are caught up in the parents’ relationship breakdown.
Do I have any rights if parenting arrangements are already in place?
Sometimes, the parents make parenting arrangements to decide on communication, access and other issues. They can be informal arrangements by way of a parenting plan, or formal arrangements that are the subject of court orders.
As a grandparent, discovering you’ve been overlooked in the parenting arrangements may be a shock. Reasons for this may include:
- The complexity of the arrangements
- The difficulty in negotiating arrangements after a relationship breakdown.
However, when you have an ongoing relationship with your grandchildren, you do have rights under the Act. You can apply for court orders to allow you to see or communicate with your grandchildren. In more difficult circumstances, you may also seek orders to gain full-time care of your grandchildren.
You can apply for orders regardless of whether the parents are still in a relationship or whether their relationship has ended.
What will a court consider?
These applications usually go through a dispute resolution process, such as mediation, before a court hears the matter. Most applications are resolved in this phase. Mediation allows all parties to talk through the issues with the help of an independent mediator.
However, if the issues aren’t resolved, you may decide to continue to a court hearing.
When a court considers an application involving children, two fundamental principles take priority over everything else. They are:
- Any decision must be in the children’s best interests; and
- The children must be protected from harm.
A court is unlikely to grant orders if there are doubts about whether the grandparental relationship meets these principles. If the relationship passes this threshold, a court will then consider all the other circumstances and whether the orders are appropriate.
A court (or mediator) will consider issues such as:
- The children’s relationship with you
- The children’s relationships with other significant people in their lives
- What the children want (if they can express their views)
- How any changes to the children’s care and routine will impact them
- Your ability to care for the children
- The parents’ abilities to care for the children
- Any issues that threaten the safety of the children, such as family violence.
Before deciding to take legal action, it’s critical to consider its long-term impact on your relationship with the parents. There’s a risk that it will permanently damage any possibility of restoring positive relationships. We recommend you seek our legal advice before deciding on this course.
How do I restore contact with my grandchildren?
If the parents deny you access to your grandchildren, you need to treat the situation sensitively. It’s an emotionally charged time for everyone.
First, try to re-establish communication with the parents. Stay focused on the wellbeing of your grandchildren and try to keep the parents focused on that goal as well. You may be able to suggest a compromise, such as video calls, if the parents object to your seeing the grandchildren in person. However, this would usually be a temporary measure while you try to find a permanent solution that suits everyone.
Starting a formal legal process in these early stages may only escalate the conflict. However, where there are complexities, such as a grandchild’s health issues or a safety threat, seek advice from an experienced family lawyer. Often, the other party doesn’t need to know that you’ve engaged legal services in the early stages.
If the issues remain, your family lawyer can help you find a mediation service or discuss other legal avenues.
What if I’m the primary carer for my grandchildren?
If you’re the primary carer for your grandchildren, it may be because the parents are unable or unwilling to care for them. It means your role in your grandchildren’s lives is critically important, especially because it provides stability and security.
If the parents then seek full-time care of the children, the biggest question is whether this is in the children’s best interests. If you believe it is not, especially if there is a risk to their safety, you may need to apply for parenting orders that say the children live with you. If you are in this situation, seek urgent legal advice from a family lawyer.
The final word
Your relationship with your grandchildren is special and important. The Act recognises this, but its protections aren’t automatic. If your bond is threatened because of the parents’ relationship breakdown, legal action may be necessary to advocate for the children’s best interests. It’s a difficult time and a delicate balancing act. Carefully consider the pros and cons of legal action. Alternatives, for example, other forms of communication and mediation, should be tried if possible. There is also much benefit in getting legal advice without launching into litigation because it can help you navigate the complexities without creating further conflict.
Similarly, getting help and support from other services, such as family counsellors, can also smooth the path to a happier outcome. Ultimately, the most important question is, “What is in the child’s best interests?” It’s how a court will determine the issue, so keeping this in mind is critical.
