What are grandparents’ rights after divorce?

When a marriage or de facto relationship breaks down, there may be disagreement about who the children of the relationship should live with and how often the children should spend time with the other parent and/or parental figure. A related matter is the continued involvement of each set of grandparents in the children’s lives, whether that involvement takes the form of regular contact and communication, or an active role in decision-making about the children’s upbringing. The possibility that a grandparent may be prevented from seeing their grandchildren in the wake of divorce is a real and upsetting one. Fortunately, there are legal options open to grandparents seeking to maintain or re-establish contact with their grandkids after separation or divorce.

Are grandparents legally entitled to see their grandchildren? 

Under Australian law, there is no express right of grandparents to see and/or care for their grandchildren. The Family Law Act does not, in fact, directly refer to grandparents except to note that children are entitled to maintain relationships with persons who are important to their welfare, care and development, including within this category extended family members such as grandparents. Importantly, the children’s best interests is the guiding criterion. 

While a grandparent has no legal right to ongoing contact with their grandchildren, they can negotiate with the children’s parents and create formal or informal arrangements as to how often, for how long, and at what times visits and/or communication can take place. In this connection, a grandparent can apply to the court for a parenting order, being a determination addressing matters such as where and with whom a child is to live, who a child can otherwise spend time with, means of communication between the child and other significant persons in their life, the assignment and division of parental responsibility and other issues to do with the child’s care, welfare and development. Of course, going to court to seek parenting orders should be a last resort. Ideally, consensus should be reached and an informal arrangement created to suit everyone. 

Arrangements by agreement 

It may be possible for the child’s grandparents and parents to come to an agreement regarding contact and visitation. This can be done informally, with or without the assistance of a family dispute resolution practitioner such as a mediator. Generally, for an informal agreement to be viable, it will need to be the case that the grandparent has a good relationship with their adult child and/or a good relationship with the grandchild’s other parent. Where the child’s primary caregiver and grandparent(s) are not on good terms or are unable to interact in a civil manner, an informal, non-binding arrangement or agreement may be neither practicable nor in the best interests of the children. 

Applying for parenting orders

Depending on the circumstances, it may be appropriate for a grandparent to apply for parenting orders. In respect of parenting disputes, a grandparent is entitled to bring court proceedings or to join existing proceedings as a third party. 

A parenting order can make specific provision for the children to continue spending time with their grandparents (allocated time on weekends or during school holidays, for instance), but it can also go much further than that. A grandparent may apply for and obtain parenting orders whereby they assume full or shared, sole or joint parental responsibility and care of the child. Such orders are only available where it can be demonstrated that the child’s parent is unable or unwilling to care for the child and meet the child’s emotional, intellectual, developmental or financial needs. An example of where a court may see fit to make an order assigning full parental responsibility to a child’s grandparents is where the child would be at a risk of physical or psychological harm or neglect if left in the care of the parent(s), or where there are family violence or substance abuse issues. The court will need to balance the need for the child to maintain a meaningful relationship with their parents, with concerns about the child’s safety and well-being. 

If the court makes an order conferring parental responsibility on the grandparents, the grandparents will possess the legal authority to make decisions for and about the child’s welfare and upbringing without needing to consult or obtain the consent of the child’s parents. 

Another option is to apply for a parenting order by consent (aka “consent orders”). This is a means of formalising an existing arrangement between the parents and grandparents, such as where the children reside with the grandparents in accordance with an informal agreement. The agreement is simply reduced to writing and registered with the court. Once approved by the court, it attains the status of a legally enforceable agreement.

In making a parenting order, what will the Family Court take into account?

The bottomline, in every case, is the best interests of the child. A court will not make an order unless it is satisfied that the terms of the order correspond with what will best serve the child’s welfare, care and development. Factors that the courts tend to consider before making any parenting order include: 

• Any threats to the child’s safety and well-being, including abuse, violence or neglect;
• The child’s right to benefit from a meaningful relationship with their parents;
• The child’s right to benefit from a meaningful relationship with their grandparents;
• The nature and quality of the child’s existing relationship with their parents and with their grandparents;
• The need to avoid unnecessary disruption to the child’s life;
• The parents’/grandparents’ respective capacities to meet the needs (including any special needs) of and financially support the child;

• The child’s attitudes, views and preferences (depending on their degree of maturity and ability to make informed choices about who they live with).

Key takeaways

• Grandparents have no automatic right to spend time with or care for their grandchildren – but there are ways to ensure that they can maintain contact with their grandkids in the aftermath of a relationship breakdown. 
• The law recognises a child’s right to benefit from meaningful relationships with significant persons in their life, including both their parents and grandparents.
• Arrangements providing for continued communication and contact between grandparents and their grandkids in the wake of divorce can be formulated by agreement, or rendered enforceable by court order. 
• The best interests of the child is the prevailing consideration in all cases.

If you have any questions about the contents of this article, or about how the legal principles mentioned therein may apply to your own family law matter, we have the answers. Get in touch with our team to speak with one of our family law experts.