Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 22 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
The role of a grandparent is a special one. Different of course to raising your own children but very special nevertheless.
It is understandable why grandparents become devasted when, often due to circumstances completely beyond their control, they are denied meaningful access to their beloved grandkids.
This can happen when there is a breakdown in the relationship with their son or daughter-in-law or even with their own child. This break down often coincides or follows a marriage or relationship break-up, involving the child parents.
A child’s extended family and particularly grandparents can be a very important part of a child’s life and can play an important role in their upbringing.
A grandparent does not have an automatic legal right to see their grandchild.
However, a child legally has the right to maintain a relationship and regular communication with those that are considered important to their welfare case and development.
The Family Law Act specifically refers to grandparents as belonging to that category.
So whilst you do not have an automatic right to maintain contact, your grandchild has a right to continue to spend time with you. If the child’s parents are acting in a way that denies the child’s rights, you as a grandparent can take action and enforce their right.
By law you are entitled to make an application to the court for a parenting order for access and regular contact.
The principles that the court applies in deciding whether to grant access, and to what level, are the same that apply to any other person wanting to spend time with the child. This includes the child’s parents.
The court will only grant an order when they consider it to be in the best interests of the child. Sometimes it is necessary for grandparents to apply for full custody.
This can happen in situations where the parent is unwilling or unable to care for the child or lacks the capacity.
The court will again look at what is in the best interests of the child.
Some of the factors they look at in reaching that decision include:
- What type of relationships do the children currently have with their grandparents
- The likely effect of change on the child.
- Whether there is any evidence of family violence
- The need to protect the child’s psychological or physical safety.
The views of the child (as to what they would like) may also be taken into account. This would only happen if they are of an age and maturity where they are able to express a valid position.
The views of the children are obtained by a specialised psychologist who prepares a report for the court.