When there is a relationship breakdown in a family it is not only the children and the separating spouses that suffer. Grandparents that have had an important role with their grandchildren also go through the turmoil brought about by the separation. Often grandparents have been the main caregiver. Often, the grandparents have been in almost daily contact looking after children while responsible parents work long hours. Sadly, sometimes grandparents have to take responsibility when parents have drug or alcohol dependency or mental health issues. A bitter dispute however may result in the grandparents suddenly being excluded, unfairly, and not in the children’s best interests. So what are grandparents’ rights when it comes to access to the children?
Grandparents’ rights are really the rights of the child. The court may recognise that children can benefit from seeing or even living with their grandparents.
Grandparents in this situation can benefit from a family lawyer’s advice. The law recognises that many grandparents play an important role in the development of their grandchildren. In some cases, the grandparents play an even bigger role than the parents themselves.
The Family Law Act clearly states the main issue is child’s best interests. Note it isn’t the parent’s best interests. Neither is it the grandparent’s best interests. The Law states that children have the right to regular contact with both parents and other people (grandparents and other relatives) that are significant to their care, development and wellbeing. The grandparent’s rights recognise that there may be value for children to gain wisdom from their elders.
Grandparents that have difficulty seeing and communicating with their grandchildren can take the following legal steps through a family law lawyer.
Step 1 – Negotiate first with your own child
Negotiate first with your own child where possible. Find out where you stand by obtaining family law advice so that you know how far to push your rights. It is far more difficult if your own child is against you. In such situations you will need to assess how strong your case is and whether you will do better in or out of the court system.
Step 2 – Negotiate with your child-in-law
If your own child, who is the parent, has no time with the children, you need to negotiate with the parent with care. This often occurs when you have had an important role with the grandchildren prior to a bitter separation and through no fault of your own are punished for being from the wrong side of the family tree. If that is the case, you may get some sympathy from a mediator or the court. If your involvement was good enough before separation, it probably is now. Prioritise and focus on your relationship with the child. Also, don’t try to fool the other parent by running your child’s case.
Step 3 – Mediation
Mediation funded largely by the government usually helps. It is probably a compulsory step. There is a waiting list, so if it’s urgent ask your lawyer whether it can be sped up or avoided altogether as a compulsory step. Find out from your family law solicitor if the advantages of mediation are worth the wait or if the delay caused by mediation is likely to be a problem. If mediation fails, often, the next step is to make a court application.
Step 4 – Court
If necessary, and if advised to do so, make an application to the court to communicate and spend time with the grandchildren. This can lead to a stronger negotiating position, or a court decision. Don’t take this step without a family lawyer’s advice.
Grandparents may also apply to obtain sole custody of their grandchildren. For example, where either parent or both parents are unable or lack the ability to take care of their children. These circumstances may involve alcohol or drug dependency or mental health issues.
Our advice will take into account an analysis of the family to determine what is in the best interests of the child. If the child faces any harm by remaining with his or her parents, then the grandparent’s right to care for the child will be increased.
Disputes like this can be very personal and expressed with a lot of emotion. In the end the parents of your grandchildren are still your children and you do not want to hurt them unnecessarily. The best family lawyers will be able to remain objective through the process.
Family law disputes are very uncertain and the family lawyer’s ability to clearly present the facts may determine whether you succeed or not. Family lawyers are also bound by the law and professionalism to uphold confidentiality.
Step zero – know where you stand
At every stage along the way, you should know what the best legal outcome is that you can get. That way you won’t reject a good offer or take a bad offer. Know more than the people you are negotiating with, or mediating with, or litigating with.
Please call our team on 03 9793 7888 to discuss your situation and we will advise and guide you on the best way to promptly solve your family law situation and how to get the best outcome possible.