Are you wondering about your legal rights as a grandparent?
Are you concerned about the welfare of your grandchild or your relationship with them?
If your relationship with your own child has broken down, you may be concerned that they will stop you from spending time with your grandchild as a result. You may be wondering if your child has the right to prevent you from visiting and if you have a legal right to a relationship with the child.
In NSW, grandparents do not have a legal right to a relationship with a child to the same capacity as a parent does. However, because grandparents and relatives are usually considered significant people in a child’s life, you can apply for a parenting order to gain visitation rights.
What should I do if I am worried about the safety of my grandchild?
In some cases, grandparents want custody of their grandchild because they are concerned for the child’s safety. If you are concerned about the immediate safety of your grandchild, your first step should be to contact the police and your local welfare agency. In NSW, this is now known as the Department of Community and Justice (formerly known as DOCS and FACS)
You can then apply to The Family Court for parenting orders to get full custody of the children.
If you already have an arrangement for your grandchildren to live with you full time, you might want to consider having this drawn up legally. To do this, you will need a written and signed consent from the children’s current legal guardians to present to the court. If you can’t get their consent, you can apply to the court to grant you orders to formalise the current arrangements.
How can grandparents apply for a parenting order?
The court always makes decisions based on what is in the best interest of the child, not the feelings of the parents or grandparents involved. For a parenting order of this nature to be successful, you will need to be able to prove to the court that living with you is the best thing for the children.
You will need evidence and facts to support your case. It is important to understand that applying for a parenting order does not guarantee that the order will be granted. If you feel it is necessary to take this step, you should contact a family law specialist to guide you through the process.
How does the court decide the best interest of the child?
The best interests of the child should always be a priority when making decisions that affect their lives. To determine this, the court will consider:
- The child’s current living arrangements
- How changes to these arrangements will impact the child
- The child’s views (depending on their age and maturity)
- What benefit the child receives from their relationship with their grandparents
- The safety of the child
- If it is reasonably practical for the relationship to be sustained
- The physical and financial capacity of parents or grandparents to care for the child
- Other existing court orders concerning the child
Does a care arrangement have to be legally binding?
Parents and grandparents can come up with an arrangement that works for them without the need for legal action. The same goes for agreements between parents about who the children will live with. These arrangements can be written into a parenting plan but do not need to become legally binding.
There is usually only a need for arrangements to be legally solidified when there is tension between parties, and an agreement can’t be reached.
Often the best way to resolve a family issue is to go to family mediation and communicate with the other party. This often helps parents and grandparents to clear up misunderstandings without the need for legal action.
What is the next step?
If you are unsure of the best course of action or need more information about your rights as a grandparent, please contact one of our offices in Sydney for personalised advice on your situation.
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These fact sheets are designed to provide an overview of the relevant issues and systems so that you have a better understanding of the process.
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