What rights do grandparents have if the parents divorce?

If you're a grandparent struggling to see your grandchildren following your own child's divorce or separation, you're not alone. Margaret McKay looks into the complexities of grandparent rights in the face of adversity, offering insights into the legal landscape and emotional challenges.

By Margaret McKay

When there’s a family breakdown, what rights do grandparents have?

The simple answer is … it depends.

Australian family law recognises the importance of a child (or children) having a relationship with grandparents, including after the child’s parents have separated.

If children are at physical, emotional or mental risk, or have become orphans, grandparents can apply for a permanent care role as a Kinship Carer, often referred to as permanent custody. This will require an application for Parenting Orders through the Federal Circuit and Family Court of Australia, and you must obtain legal advice.

But this article doesn’t address that more extreme end of grandparent rights and care opportunities. We focus on the sadly, more usual situation, where access is denied following a relationship breakdown.

This is most often the case when the family breakdown of your child with their spouse or partner has been acrimonious, and your (married or de facto) son- or daughter-in-law doesn’t want their children to see you anymore.

There may even be a strained relationship with your own child, who will deny you access to their children. Some will say they are using their children as a weapon – a sorry state of affairs for the innocent children, to be sure, and for the grandparents.

Help is on its way!

The federal government’s Family Relationships Online has loads of information and resources to help families in strife. It’s a good place to start.

They offer an information advice line (1800 050 321) if you prefer someone to speak with who can guide you through the resources available. All information is treated in confidence.

Baby steps

You might want to explore alternative ways of resolving the access issue before resorting to court action.

One option is Family Dispute Resolution (FDR), a process where a qualified, independent FDR practitioner helps people discuss issues and reach agreements about children’s arrangements.

Aim for a co-operative approach. That old saying applies here: You can catch more flies with honey than you do with vinegar. Once agreements are reached, maintain consistency with access arrangements. If it ultimately ends up in court, such matters will be considered.

FDR can be less costly, less stressful, more flexible and more cooperative than going to court. These services can be accessed through Family Relationship Centres, Legal Aid Commissions, some community organisations offer the service, or with private providers.

The idea is that you will be working towards achieving a Parenting Plan, which can specify the terms and conditions of your access to your grandchildren, such as how often you see them and where, and how you may communicate with the children and with their parents.

It’s basically a written agreement with the idea that because it’s in writing, everyone will be clear about the access and the boundaries, but it’s not legally enforceable.

If the softly softly approach fails, what next?

Having tried everything else, you may need to turn to the law courts.

Unfortunately, the Family Law Act doesn’t recognise any actual rights of grandparents. But don’t give up all hope because in any family dispute, the rights of a child are prioritised, and thankfully the law does recognise the importance of children having an ongoing relationship with their grandparents.

The one proviso, as with all things the courts concern themselves with regarding our precious little ones, is that any relationship it considers must be in the best interests of the child.

But wait … there’s more good news!

Except in criminal or at-risk cases, the Family Court insists that parties to family disputes participate in counselling before they proceed to court. The section of the Family Law Act dealing with family counselling in dispute resolution (Part IIIB, Division 3, section 13C clause 3) states:

A Court order may require the party or parties to encourage the participation [in family counselling] of specified other persons who are likely to be affected by the proceedings.

Of particular relevance to that clause is a note attached to the clause:

For example, the participation of children, grandparents or other relatives may be encouraged.

Yay! The court therefore does most definitely recognise the importance of grandparents within the framework of family law and relationship breakdown, and it recognises that grandparents may submit information and participate in the mediation process.

But what if the parents don’t comply with the mediation decision?

You can take the matter to court to seek visiting or access rights, but you should be aware of the many potential unforeseen challenges ahead.

• The cost of legal proceedings may be more than you can afford.
• There may be considerable difficulty in proving a case and in providing evidence.
• One or both parents, and other parties, may oppose your application.
• The uncertainty and delay of court outcomes can be stressful.
• The emotional impact of litigation on you and on the grandchildren may be greater than you expect.
And remember to take good care of yourself throughout the process.