Grandparents’ Role in Family Dynamics

NSW as well as Australian law puts a lot of importance on the welfare of a child attained through maintaining a relationship with their relatives, including their grandparents. In ideal situations, a child should have a relationship with their grandparents, but that is not always the case, especially if there is a breakdown of their relationship with the parents. In any case, if the child or children have surviving grandparents who are capable of maintaining a healthy and beneficial relationship with their grandchildren, the law would favour the same.


Legal Foundations: Understanding Grandparents’ Rights

Grandparents’ rights to be present in the lives of their grandchildren are outlined in quite explicit terms in Section 60B of the Family Law Act (1975). It clearly 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 (such as grandparents and other relatives).”


It should be noted here that this does not automatically give grandparents a legally binding right to be in contact with their grandchildren. The child’s welfare is paramount. In other words, a grandparent cannot simply demand to stay in touch or care for their grandchildren; it will be decided if it is in the best interests of the child to be in contact with or live with their grandparents partially or completely. However, grandparents do have the right to discuss with the primary caregivers of the child or apply in court requesting visitation or custody rights. Whatever decision is reached must be respected by all parties.


Types of Relationships: Visitation vs. Custody

There are two ways in which one or more grandparents may request to exercise their rights to their grandchild. They may either ask for visitation or custody. Visitation refers to the right to spend time with the child, either in person or via other means, either in the presence of their primary caregiver or not. Thus, visitation in NSW and Australia can be defined in ways other than directly spending time with the child, like contact through phone, text, email, video call, social media, and so on.


On the other hand, custody refers to rights given to the grandparents (in this case) to exercise primary responsibility for the care and upbringing of the child, either for partial periods in their life or throughout the entirety of their remaining childhood years, as decided in mediation agreements or mandated by the court. Once again, the decision is based on what is best for the welfare and healthy development of the child.


Factors Influencing Grandparents’ Rights

As we have mentioned before, grandparents do not have the automatic right of access to their grandchildren. If the parent/s or primary caregiver/s of the child are unwilling, unable, or incapable of providing a healthy childhood to the child or it is clear that they are inhibiting or endangering the healthy growth and development of the child, it would be in the favour of the grandparents to apply for visitation or custody rights.


However, at the end of the day, the deciding factor would be the best interests of the child. That implies that the court will consider:

  • The protection of the child’s physical, emotional, and mental health and safety
  • The benefits of having a meaningful relationship with their grandparents
  • The relationship dynamics of the child with their grandparents while considering the equation of the parents with both.
  • If the child is sufficiently financially supported and receives all the resources and assistance for healthy development
  • The likely effect this change will have on the child, especially if the grandparents have not seen the child for a long time or been in their lives for a short period only
  • If the grandparents themselves are physically, mentally, and financially capable of sustaining the child’s healthy lifestyle.
  • Whether there is evidence of any family violence, any type of abuse, or neglect.
  • If there is a case of drug abuse by the primary caregivers
  • If there is sufficient cause to believe that the child is facing any kind of endangerment
  • The opinions and wishes of the child if they are old and mature enough to convey the same.
  • Any other factors specific to the case


Legal Procedures for Grandparents Seeking Custody/Visitation

If you are a grandparent seeking visitation or custody rights for your grandchild, it is best to attempt it in the following order:


Step 1: Get Legal Advice

The first thing you must do is to consult a family lawyer about your options and your chances of being granted said rights. A lawyer will be able to inform you of how good your chances are and how strong the case is in your favour. They will also help you gather evidence that might help you with your case.


Step 2: Arrange for Mediation

The next step is to arrange for family dispute resolution. You must meet with the parents or other primary caregivers and aim to come to an agreement about a parenting plan that grants you your rights to your grandchildren. This is known as mediation or conciliation and is done in the presence of a licensed practitioner independent of both parties. Once an agreement is reached, you must apply for a formal Parenting Plan or Consent Order in court to legalise the arrangement.


Step 3: Go to Court

If an agreement cannot be reached and you wish to continue to fight for your rights, your last resort is to go to court. You must bring with you a certificate issued by a licensed family dispute resolution practitioner stating that mediation was attempted, otherwise, you might be awarded penalties. In certain situations, a certificate is not necessary, like where abuse or child endangerment is involved and easily provable. It is advisable to seek legal assistance when you lodge your application in court as they will help you gather evidence and documents in favour of your case and make it easier to win it.


Challenges Faced by Grandparents in Custody Battles

It is easier for grandparents to seek visitation rights than parental responsibility, especially if there is no viable cause to claim that the parents or primary caregivers of the child are unfit for the job. Unless it is clear that the child’s parents are a direct danger to the child or are overwhelmingly unable to provide for them and the grandparents are the next best option, it would be difficult to win a custody battle. This is especially true if the grandparents themselves are not physically, mentally, or financially capable enough to take care of the child.


Resources like Grandparent Child Care Benefit, Family Tax Benefit, Double Orphan Pension, Child Care Tax Rebate, Newborn Upfront Payment and Newborn Supplement, Maternity Immunisation Allowance, Carer Allowance, Healthcare cards, Medicare benefits, Payments through the NSW Department of Communities and Justice (DCJ), Supported Care Allowance, and Child Support are available and accessible to grandparents caring for a child. However, these benefits can only be utilised after the child is placed in their care.


Contact Us

Maatouks Law Group has a long history of successful family law practising and can help you with any kind of custody dispute. Get in touch with us and discuss your needs through our free phone consultation today!