In Australia, the well-being of children is of utmost importance. And the preference has traditionally been for them to remain under the care of their parents.
However, circumstances may arise where this is just not possible. And in that case, grandparents may want to step in and take custody of their grandchildren.
But what are the rules around this? Can grandparents apply for custody in Australia?
Can grandparents apply for custody in Australia?
The short answer to this question is yes. Grandparents can apply for custody in Australia. The Family Law Act 1975 (Cth) (the Act) acknowledges the importance of grandparents in a grandchild’s lives and sets out the rights of grandparents generally. These include being able to spend time and communicate regularly with their parents and other people ‘significant to their care, welfare and development (such as grandparents and other relatives).’
Of course, these rights don’t automatically include the right to custody. However, grandparents are given the right (in the Act) to apply for custody if the situation warrants it. In fact, under the Act grandparents hold the specific right to seek parenting orders concerning their grandchildren.
Grounds for seeking custody
Courts will consider custody for grandparents if:
- A parent is unable to provide suitable care for the child.
- If the child is at risk of harm in a parent’s care.
In those cases the Court may intervene and award custody to the grandparents to ensure the child’s safety and well-being.
Determining the best interests of the child
In determining whether or not to award custody to a grandparent, the Court will apply the best interests test, which includes carefully examining various factors. These include:
1. Meaningful relationship
The Court evaluates the benefits that a child may derive from having a meaningful relationship with their grandparents.
2. Protection from harm
The Court considers whether granting custody to grandparents will protect the child from physical or psychological harm.
They’ll also take into account additional factors such as:
- The child’s preferences, considering their age and level of understanding.
- The quality of the child’s relationships with both parents and grandparents.
- The potential impact of custody changes on the child, including separation from parents or other significant individuals they’ve lived with.
- The grandparents’ capacity to meet the child’s emotional and intellectual needs.
Parenting orders
If you’re a grandparent who’s seeking custody of your grandchildren, you’ll need to get a parenting order. These are binding legal directives that outline the arrangements of a child’s care.
Parenting orders will cover where the child will live and how much time they will spend with parents and grandparents as well as other aspects of the child’s life (as needed). This might be who has the right to make decisions for the child, travel arrangements, how special occasions will be handled, and other general care and welfare needs.
How to obtain a parenting order
If you decide that you’d like to seek a parenting order for your grandchild, there is a two-step process you have to take.
Step 1: Mediation
As a first step, you must attend mediation with the other concerned parties. In custody and parenting matters, the Family Court mandates compulsory mediation and encourages parties to make genuine efforts to resolve disputes outside of court. You will only be able to proceed with the court application process where mediation is unsuccessful.
Mediation is a good time to speak to the other concerned parties about what is best for your grandchild. Hopefully you will be able to come to a resolution that doesn’t involve going to Court. If you are able to come to an agreement, then this can be made official by the Court in a parenting order. It then becomes binding.
Step 2: Initiating Applications
If you aren’t able to come to an agreement with the other concerned parties about parenting arrangements, then you can initiate Court proceedings by filing an Initiating Application. This formal step sets the process in motion, allowing you to select a court date and serve the necessary documents on other involved parties.
Once the Court holds its final hearing (also known as a ‘trial’ in Family Court), the Court will make its decision and issue final orders. These parenting orders are binding on all parties until the child reaches the age of 18, and there are serious consequences if they aren’t followed.
What do I need for the Court process?
- Get legal advice. Before you start the custody process, it’s important that you seek legal advice. Given the complexity of family law matters, seeking professional legal advice is the best first step for ensuring that you get the outcomes that are best for your grandchild.
- Evidence and affidavits. Your lawyer can help you to gather the evidence and create the affidavit material for the Court to consider.
- Independent Children’s Lawyer. In some cases the Court may appoint an independent children’s lawyer to help them understand the arrangements that align with the child’s best interests. These lawyers are impartial and focused only on the child’s welfare.
- Family & expert reports. In certain instances, the Court may request a family consultant or another expert to prepare a family report. This report provides an independent view of family relationships and the matter at hand, helping inform the Court’s decision.
What if my grandchild is at risk for immediate harm?
You can seek urgent orders in the Initiating Application if your grandchild is in immediate danger of physical or psychological harm, abduction, relocation or if they need to be recovered after abduction or relocation. The Court will hold an interim hearing based on the information filed, and an urgent order will remain in effect until final parenting orders are issued.
Get expert advice
If you’re a grandparent who is considering custody for a grandchild, get in touch with our expert team. We’re on hand to help you manage the process and any other aspect of family or relationship law.
