Can Grandparents Get Custody of their Grandchildren?

The Family Law Act in Australia underwent significant changes in 2006 under the name the Family Law Amendment (Shared Responsibility) Act 2006. One of the key changes was intended to better recognize the interests of the child in spending time with other important people in their life. Under the Act, this includes grandparents.

The Act recognizes 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)”.  And, when a court is making orders under the Act, it has to take into account “the nature of the relationship of the child with other persons (including any grandparent or other relative of the child)”.

Under the Family Law Act, as a grandparent, you don’t have an automatic right to see your grandchildren; however, they (the children) have the right to see you, if that is in their best interests. And you do a have a right to have your relationship and role in their lives considered by a court that is making decisions about what future care and living arrangements would be best for them. You may be entitled to become the grandchildren’s primary carer. In such case, you would seek orders that the grandchildren live with you and that you have parental responsibility for the grandchildren. (“Parental responsibility” means that the grandparent will be able to make long-term decisions relating to such things as health and education.) When the court decides who the children should live with, there is no presumption in favour of a biological parent. If it is decided that it is in the best interests of the children to live with a grandparent then the court will make such order.

In order for grandparents to obtain sole parental responsibility for the grandchildren and orders for the grandchildren to live with grandparents. These orders will only be made by the court where the children’s parents are unwilling, unable or lack the capacity to care for the children ( for example as a result of addiction problems and/or family violence).

When the court is deciding what parenting arrangements should be put in place for grandchildren, the Court must regard the best interests of the children as the paramount consideration. In determining what is in the best interests of the children, the Court must examine, weigh, apply and make findings as to various considerations, including the benefit of the children having a meaningful relationship with both parents and the need to protect the children from harm and/or family violence

Deciding children's best interests:

 The court’s most important considerations are:

  1. Protecting children from physical and psychological harm, including children seeing family violence, being neglected or being physically or psychologically hurt;
  2. the benefit of children having a meaningful relationship with both parents.

If these two conflict, then the need to protect the children is more important.

The court must also consider:

(a) any views of the children, balanced against how much they understand and how mature they are.

(b) the kind of relationship children have with their parents and other significant people, including grandparents, brothers and sisters, and other relatives.

(c) the extent to which each parent has been involved (or not) with decisions about major long-term issues about the children

(d) how much time each parent has (or has not) spent with and communicated with the children

(e) whether each parent has supported the children financially or failed to do so, for example paying child support on time

(f) the likely effect of any change to where children have been living or staying, including separating them from either parent, grandparents, siblings, any other relatives or other people important to their welfare

(g) the practical difficulty and expense of children seeing each parent, and whether that will affect their right to have a relationship with each parent (this includes spending time with and/or communicating with each other)

(h) how much each parent and any other person (including grandparents and other relatives) can provide for the children’s physical, emotional and intellectual needs

(i) the maturity, background (including culture and traditions), sex and lifestyle of the children and of each parent, and anything else about the children that the court thinks is important

(j) the right of children who are Aboriginal or Torres Strait Islander to enjoy their culture (including with others of that culture)

(k) each parent’s attitude to the responsibilities of being a parent and towards their children in general

(l) any family violence involving the children or a member of their family

(m) any contested or final family violence order that includes the children or a member of the children’s family

(n) whether the orders that the parties have applied for will lessen the risk of further court proceedings

(o) any other considerations the court thinks are important.