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Common Reasons Grandparents Can File for Custody of Grandchild

Published on March 8, 2024

    About the Author

    Mia Zitzlaff

    Mia began her career in law working at a boutique firm in Mornington, VIC as a Legal Assistant. There, she gained extensive experience in a range of family law and wills and estates matters, before becoming a lawyer in August 2022.

    Mia began her career in law working at a boutique firm in Mornington, VIC as a Legal Assistant. Ther... Read More

    Mia Zitzlaff

    Author

    Every family’s dynamics and circumstances are different, and whether due to parental neglect, abuse, or the heartbreaking absence of the parents, grandparents are sometimes the best option for providing a loving and stable home for children.

    Parenting and child custody matters are challenging on both a personal and legal level, and in this article, our child custody lawyers Sydney are going to discuss the legal justifications and scenarios where grandparents have the right to step in, paving the way for a secure future for their loved ones.

    Key Takeaways

    • Under the Family Law Act 1975, grandparents in Australia can apply for custody and parental responsibility through parenting orders, which are determined with the child’s best interests as the primary concern.
    • Grandparents may seek custody due to parental unfitness, family violence, or the absence of both parents, and must demonstrate the ability to provide a stable and nurturing environment for the grandchild.
    • Obtaining custody involves initiating the court process, attempting family dispute resolution, potentially receiving parenting orders, and may include creating legally binding consent orders for informal caregiving arrangements.

    What rights do grandparents have in Australia?

    The Family Law Act 1975 plays a pivotal role in grandparents’ rights. The Act recognises the important role of grandparents in a grandchild’s life and their rights to spend time and communicate with their grandchildren. Under the Act, grandparents are expressly acknowledged to have the right to seek parenting orders, reflecting the legal system’s support for their active involvement in the grandchild’s life.

    The primary concern in such cases is always the welfare and well-being of the child. The courts will consider various factors, such as the benefit of the relationship between the child and the grandparents and the need to protect the child from any harm, to determine if custody with grandparents serves the child’s best interests.

    While grandparents do not have automatic parental rights, they can apply for parental responsibility through parenting orders. The concept of parental responsibility is key in family law. It refers to the duty to maintain and provide for the child, including making decisions about their care, welfare, development, and child support.

    It’s worth noting that while biological grandparents may have an advantage in court proceedings, non-biological grandparents can also seek custody of their grandchild, given they can demonstrate a significant involvement in the child’s life.

    Common reasons grandparents can file for custody of grandchild?

    Grandparents may find themselves needing to step in and care for their grandchildren due to various circumstances. These situations often involve the parent/s being unable to care for the child or the child’s safety is at risk in their current situation. Some possible scenarios include:

    Parental Unfitness and Neglect

    The court may grant custody to grandparents when there is evidence of abuse, neglect, or substance abuse by the parents. This could manifest as a lack of capacity to care for the child, making the parents unfit for parenting. Essentially, the grandparents can apply for custody of their grandchildren if there is evidence that the parents are unwilling, unable, or lack the capacity to care for the child.

    Family Violence and Safety Concerns

    Another significant reason leading grandparents to seek custody of their grandchildren is the presence of family violence. Violence can severely impact the child’s psychological and physical safety. Evidence of family violence is a serious concern in the eyes of the court, and grandparents are often seen as the safest and most stable option for the child in such circumstances.

    Absence of Both Parents

    In situations where both parents are absent, due to reasons such as death, divorce, or incapacity, grandparents can step in to provide care and stability for their grandchildren. In such cases, grandparents can seek parenting orders to formalise custody arrangements and gain parental responsibility. This legal authority allows them to make significant decisions on behalf of the child.

    In cases of urgency, such as the death, critical injury, or incarceration of both parents, the court has a Critical Incident List which allows for quick legal intervention to ensure the child’s welfare is protected.

    How can a grandparent get custody?

    Given the complexities of the legal landscape, while grandparent’s rights in Australian family law certainly makes it possible for grandparents to gain custody of their grandchildren, it can be a challenging process. Below, we’ve summarised the steps involved:

    Initiating the Court Process

    The journey to obtaining custody begins with initiating the court process. This involves:

    1. Filing an Initiating Application for parenting orders, a necessary step when grandparents cannot agree on parenting arrangements with the child’s parents.
    2. Grandparents are eligible to apply for parenting orders if they are grandparent carers or individuals concerned with the child’s care, welfare, and development.
    3. The Federal Circuit and Family Court of Australia provides a step-by-step guide to assist grandparents in this process.

    Before applying for parenting orders, grandparents are generally required to attempt family dispute resolution. This is a form of mediation aimed at reaching an agreement outside of court. If an agreement is reached, it may result in a parenting plan. If no agreement is reached, parties can proceed to apply for parenting orders. To start court proceedings for parenting orders following unsuccessful family dispute resolution, grandparents must provide a Section 60I Certificate from an authorised FDR provider. There are exemptions from this requirement in cases of family violence or urgent situations that necessitate immediate court action.

    How can we help?

    Navigating the complexities of family law can be daunting for anyone, but it doesn’t have to be so. At Unified Lawyers, we understand the challenges grandparents face in seeking custody of their grandchildren. We’re here to provide the necessary legal advice and support to guide you through this process. Whether it’s understanding your rights under the Family Law Act 1975, initiating the court process, or drafting consent orders, our team of experienced family lawyers Australia is here to assist and encourage you to seek legal advice.

    Our family law services are available Australia-wide. Book your free consultation with us by calling 1800 667 461 or using the button below.

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