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Grandparents, grandchildren and divorce

More and more grandparents are coming forward as the “forgotten victims” of parental relationship breakdowns. In some cases they are being deprived of a meaningful relationship with their grandchildren as a result of a divorce.

Grandparents do not have an automatic right to see or care for their Grandchildren.  They do however, have a right to apply to the court for a parenting order if they want access to or custody of their grandchildren. The Family Law Act (“the Act”) recognises that children have the right to maintain regular communication with those who are considered important to their welfare, care, and development. The Act specifically refers to grandparents as being people with whom the children should maintain contact.

If the parents are unwilling to grant the grandparents visitation time, grandparents can invite the children’s parents to meet with a child psychologist or to participate in mediation before making an application to the Family Court of Australia. The court will grant an order based on the best interests of the children. In reality, if a grandparent wants to spend time with their grandchildren, the court is likely to order limited time with the grandparents.

In circumstances where parents are unwilling or are unable to care for the children, it may become necessary or desirable for grandparents to apply for access to or custody of their grandchildren. The court will need to be satisfied that the parents cannot meet the needs of the children. Where there is evidence of abuse, neglect or substance abuse the court is more likely to grant an order in favour of the grandparents. The order can either give the grandparent full custody of the children or shared custody with the parent.

In deciding whether it is in the best interests of the child to be placed into the grandparent’s care, the court will refer to a number of different factors such as:

  • The need to protect the child’s psychological or physical safety;
  • The benefit of the child having a relationship with their parents and grandparents that is meaningful;
  • The kind of relationship the child has with the parents and grandparents;
  • Whether the child is financially supported;
  • The likely effect of change on the child;
  • Whether there is evidence of any family violence; and
  • Any views of the child if they are old enough and mature enough to convey relevant views.

The courts are supportive of grandparents who can show that they are acting in the best interests of their grandchildren. The important thing is for grandparents not to give up. Always attempt to maintain communication and make sure your grandchildren know your door is always open.

For More Information contact Sandra Clive or Paul Davis at CBC Lawyers on 07 4772 3644 or cbc@cbclawyers.com.au

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