Grandparents Rights: Grandchildren Visitation & Care In Family Law
Are you a grandparent, currently caring for your grandchildren? Are you unable to see your grandchildren and want to learn more about what you can do about it?
I think you will agree with us when we say, the laws around children and their grandparents can often be confusing.
In this guide, we will walk you through your rights as grandparents and what you can do to make sure your grandchild receives the care and love they deserve.
- Do Grandparents Have Rights To See Their Grandchildren?
- What Is In The Best Interests Of the Child?
- What Is The Family Law Act?
- How To Apply To The Court For A Court Order
- FACS and The Care And Protection Law
- Are You Concerned About Your Grandchildren’s Safety?
- How Are Arrangements For Children Made When Their Parents Separate?
- Grandparents Raising Grandchildren
- Are You A Grandparent In Need Of A Lawyer In Sydney?
Do Grandparents Have Rights To See Their Grandchildren?
Grandparents and parents do not automatically have the right to access their child.
The Court will always consider the rights of the child when determining parenting and care arrangements.
A child has the right to contact their extended family members, including grandparents.
Access To Grandchildren
Do you want access to see your grandchild? In 2006, amendments to the Family Law Act were made to recognise the interests of the child in regards to the time spend with important people in their life, including grandparents.
The Act recognises that a child has the right to communicate and spend time with both parents as well as any other people who are significant to their care, development, and welfare. This includes grandparents and other close relatives.
Whilst you may not have an automatic right to see your grandchild, they do have a right to see you if it is in their best interests.
You also have a right to have the relationship between you and your grandchild considered by the court, particularly when considered the future care and living arrangements would be best for the child.
Parental Rights VS Grandparent Rights
It is important to keep in mind that any adult has no automatic right to be a part of a child’s live. This includes both their parents, grandparents and other adults. Parents and grandparents only have responsibilities to children. If those responsibilities are not met, a court may not deem it in the child’s best interests to live with that person.
However, any person of relevance to a child’s care, welfare, and development is free to pursue parenting orders through the court. This includes grandparents.
A parenting order is a set of orders made by a court about parenting and care arrangements for a child. A grandparent can lodge an application to the court for a parenting order however the order will be made in the best interests of the child.
What Is In The Best Interests Of the Child?
When determining child custody and care, the court will always consider what is in the best interests of the child. The court aims for the child to have a meaningful relationship with the parents and other significant people its life. The court will make sure the child needs are met and the child is protected from harm.
When determining the best interests of the child, the court will consider:
- Wishes expressed by the child
- The child’s relationship with the parents and grandparents
- The affect of changing a child’s circumstances
- Any practical difficulties from custody arrangements
- Ability of parents to provide for the children
- Parents and grandparents attitude
- Any history of family violence
- Cultural background
- Any other relevant factors
What Is The Family Law Act?
The Family Law Act acknowledges that there are certain relationships that are important to the child’s wellbeing, development, and welfare.
Grandparents are entitled under the Family Law Act to apply to the court for orders that allow them to live with or spend time with their grandchildren. This can be achieved whether the parents of your grandchild are together or separated.
The focus of the Family Law Act is on the rights of the children, and what is considered in the best interests of the child. This will be taken into account when determining whether a child will live with or spend time with their grandparents.
How To Apply To The Court For A Court Order
Are you not able to come to an agreement regarding the care, welfare and development of your grandchild? Are you currently unable to spend time with your grandchildren?
You may be able to apply for a Court Order.
To apply for a Court Order there are a number of steps you must take.
Throughout this process, each matter will be decided on the facts and circumstances, with final decision being made with the best interests of the child considered first and foremost.
It is always a good idea to speak to a lawyer about your particular circumstances. A legal professional will be able to walk you through your rights and responsibilities and what you can do. They will also be able to point out things you may not have considered and guide you to get the best outcome for your grandchild.
Going to court can often be an emotional, stressful and expensive ordeal for everyone involved. In order to avoid this, the Family Law Act requires people to attend Family Dispute Resolution (also known as mediation) first.
It is always a good idea to approach the parents first to see if you can come to some arrangement.
If you are having difficulty communicated you can speak to an independent mediator. Working with an independent dispute resolution expert, you can talk to the parents of your grandchild, and try to come to some arrangement regarding how and when your grandchildren can have contact with you.
A dispute resolution practitioner can help you and your grandchild’s parents explore possible solutions with each other.
If mediation is successful, and you and the parents come to an agreement, a written up Parenting Plan or Consent Order can be lodged with the Court to formalise the agreement.
Going To Court
If an agreement cannot be met through Dispute Resolution then you will need to apply to the Family Court’s for an order to spend time with or contact your grandchildren.
To lodged an application to the Family Courts, you will need a certificate from an accredited family dispute resolution practitioner to show that mediation was attempted.
However, there are some exceptions to this. An example is if there are reasonable grounds to believe that the child has been or is currently at risk of abuse or family violence, or if the matter is urgent.
You should always get legal advice before you take any legal action. A lawyer will be able to advise you on your rights, responsibilities and help you prepare for your case.
If your case goes to Court, then there will be a hearing and the Court will determine what arrangements are in the child’s best interests.
FACS and The Care And Protection Law
The Child and Young Persons (Care and Protection) Act NSW is designed to provide care, protection, and services to child and young people. This act is the contemporary system of child protection in NSW. The Care and Protection Law is completely separate from Family Law.
The Department Of Family and Community Services, also known as FACS, is the NSW government child protection agency. FACS also provides support to families to look after their children or remove them if it things it is necessary for the child’s safety, welfare and wellbeing.
When FACS makes decisions about the children, Grandparents can be involved and, in some cases, may be able to have the child placed in their care.
If FACS thinks that the child is in need of care and protection, it can:
- Organise support services to be provided to the family.
- Come to an agreement with the parents that the child be placed in temporary alternative care.
- Create a care plan with the family so the needs of the child are met.
- Create a parental responisibility contact with the primary caregivers of the children.
- Remove the child from their family.
If FACS removes the child from their family, and the parents haven’t agreed to temporary care arrangements, then FACS will need to apply to the Children’s Court for an order for an alternative placement for the child.
The Children’s Court will decided who will take ‘parental responsibility’ of the child. This may be allocated to the Minister for Family and Community Services or to other suitable person, such as grandparents or other relatives. As the new primary caregiver you will have the legal parental responsibilities regarding any decisions about the child’s wellbeing which would normally have been made by the parents.
If FACS currently has parental responsibility for your grandchild and you wish to have the child living with you, FACS will need to assess you and your household to make sure that you will provide a safe and satisfactory placement for the child.
This applies even if you have been the person taking care of the child informally in the past. If you wish to take care of you grandchild on a permanent basis, you should tell FACS as soon as possible.
If you are not sure what actions you should take, always seek legal advice. A lawyer can give you expert advice and referrals to make sure your grandchild gets the best treatment.
Are You Concerned About Your Grandchildren’s Safety?
Do you think your grandchildren are at risk of abuse or being neglected? If so, talk to your the child’s parents about your concerns. If the issue is not resolve and you think there are serious problems of violence or neglect and you need advice, you can get help and information by rising a parenting hotline.
Other alternatives include:
Call The Police
If you are worried for your grandchild’s safety, you can contact the police who can investigate the matter further. Call 000 if it is an emergency, alternatively you can call the number of your local NSW police station.
Report Your Concerns To FACS
If you fear for your grandchilds safety, welfare or well-being you can report your concerns to the Department of Family and Community Services by calling the Child Protection Helpline on 132 111. All reports are treated confidentially. FACS will report your concerns and decide what to do.
Seek Legal Action Under The Family Law Act
Any person concerned with the welfare, care or development of the child may be able to apply with the Court to have the child live with you. Always seek legal advice before you do this.
How Are Arrangements For Children Made When Their Parents Separate?
In many cases, when two parents separate, they can agree with who the children live with and any arrangements regard how much time is spent with each parent and other aspects of the children’s lives. Often this is done informally, without the need for documentation or going to court.
These decisions can also be put in writing in the form of a Parenting Plan. A Parenting Plan sets out the arrangements for the children, between the two parents without having to go to court. However, a Parenting Plan is not a legally enforceable agreement.
To make more formal arrangements the parents can make the agreed arrangements and have them written up as a Consent Order which is then registered by the court. Consent Orders are legally enforceable.
Grandparents In Parenting Plans & Consent Orders
Are you confident that you will continue to have the same level of contact with your grandchildren when their parents separate? If not, grandparents should always try to seek arrangements with the parents first when arranging times to spend with their grandchildren
You and the children’s parents can attend mediations sessions and if an agreement can be reached you can be included in a Parenting Plan or Consent Order. These plans must be agreed to and signed by both parents, so the grandparents can only be included if all the parties agree.
When setting up arrangements, the best interests of the child must always be taken into account, and the practicalities of implementing the arrangements need to be considered.
If the parents cannot agree on the arrangements for the child, then you may be able to apply to either the Family Court or Federal Circuit Court for a Parenting Order about your children.
Although you have the right to apply to the court for an order, it does not mean that the Court will make an order in your favor. Always seek legal advice before you apply for a court order or agree to anything.
Grandparents Raising Grandchildren
Are You Caring For Your Grandchildren & The Parents Want Them Back?
Has your grandchild been living with you under an informal arrangement? If so, you may want to consider formalising the arrangement in writing.
This can be done by drawing up a consent order and registering the arrangements with the Court, as mentioned above. This will clarify the arrangements and help if there are any disputes in the future about the care of the children. As always, seek legal advice before agreeing to any binding agreement.
If you have been caring for your grandchild on an informal basis and you don’t think returning to their parents is in the best interests of the child, then you should consider court actions that give you custody over the children.
If you decide to get a court order you will have to go through the Court Order Process.
If there are existing parenting orders that give you custody over your grandchild then the parents will need to apply to the court for the orders to be changed before they take the child back into their custody. The parents will need to show that their circumstances have changed since the original orders, and it is in the child’s best interest to return home to them.
Can I Apply To Care For My Grandchildren?
Grandparents are entitled to become a child’s primary carer. In these cases, your can apply for a Court Order to gain custody of a grandchild. When the court decided who the children should live with, there is no presumption in favour of a biological parent. The decision by the Court will be made in favour of what is deemed in the best interests of the child.
Cases where grandparents can obtain sole parental responsibility for their grandchildren usually occur when the children’s parents are unable, unwilling or lack the capacity to care for the child.
Financial Support For Grandparents
Are you a grandparent raising your grandchild and in need of financial support?
Whether you have a court ordered arrangement or informal arrangements regarding the care of your grandchildren, there may be some financial support available for you.
There are a number of payments available to asset grandparents raising or caring for their grandchildren. So long as you have the legal responsibility and day-to-day care for your grandchildren you may be eligible for financial assistance.
For most organisations, you must have at least 35% actual care of the child to be eligible for assistance. You will generally not be eligible for family assistance if the parent of the child also lives in the same household.
The financial assistance you may be eligible for includes:
You can claim medicare benefits for your grandchild’s medical expenses. You will not need to register the child on your Medicare card or a card issued for the child. A receipt in your name will suffice when claiming the benefit.
If the children in your care are either fully immunised or have an approved exemption from immunisation, then you may be eligible for this allowance. This payment is paid over two separate instalments. The first instalment is payable when the child is 18 to 24 months old and the second is payable when the child is 4 to5 years old.
If you are taking care of older grandchildren, this allowance is available to 16-24 year olds who are studying full time, have a full time apprenticeship, training, looking for work or are sick.
Do you receive Centrelink payments such as the Age Pension? If you are eligible for the Family Tax Benefit, your grandchildren you care for can be added to your Pensioner Concession Card. Your grandchild will be able to receive the same benefits at a concession rate.
If you don’t receive Centrelink payments, but are eligible for the maximum rate of Family Tax Benefit A, you will automatically be given a Health Care Card for you and your grandchildren.
Are you caring for you grandchild through an informal or formal foster care arrangement? The foster child Health Care Card is issued in the child’s name and is not means tested.
Child Support Payments For Grandparents
Are you caring for your grandchild at least 35% of the time? If so, you may be eligible to receive child support from your grandchild’s parents. To do this, you will have to apply for a child support assessment through the Department Of Humans Services.
If you do choose to apply for child support, both parents will be assessed. It is always a good idea to seek legal advice before you pursue child support. A lawyer will be able to help you determine what you are entitled too and walk you through the child support process.
FACS Payments For Grandparents
If you are the full time Authorised Relative Carer of your grandchild, you will receive a Statutory Care Allowance to help with the costs of caring for your grandchild. This covers clothing, food, travel, educational costs, pocket money and so on.
If you are caring for the child on an informal basis or through a Family Court Order, you may be able to receive a Supported Care Allowance. This will contribute towards the costs of caring for the child if you can show a need for financial assistance. To be considered, you will be assessed by FACS and they will take into account any other payments you receive.
Are you in need of extra support with the care and responsibility of your grandchild?
Grandparent advisors can provide you tailored information about payments and support service that are available to you. They can help with the arrangement of appointment with specialist staff such as social works and refer you to federal, state and community service providers.
For more information on grandparent advisors visit the Human Services website.