Do Grandparents Have Access Rights After a Divorce?
A divorce can be an emotionally devastating time for all family members – including extended relatives such as grandparents.
If you are a grandparent, you may be concerned about never being able to see your grandchildren again, or suddenly having limited contact with them.
There are legal avenues to pursue if you find yourself caught in this position. After all, a child’s relationship with their grandparents is different to an in-law or parental relationship, and the courts have recognised it as such.
In fact, the courts have gone so far as to embody grandparents’ rights to love and nurture their grandchildren as in the ultimate ‘best interests of the child’.
It should be noted though that the focus is on the child’s best interests – no one else’s. So while it may benefit you in having a relationship with your grandchildren, the real question to be decided is whether it will benefit the children.
Family dispute resolution
If your rights of access to your grandchildren are being barred, the first step is to involve the parents in family dispute resolution, such as mediation and family counselling.
When emotions are raw, it can be easy for parents to neglect the interests of other relatives and that’s why family dispute resolution provides a safe forum to openly discuss your grievances.
Any agreement reached can be incorporated by consent into a parenting plan relating to the future care of the children.
If however an agreement cannot be reached, your next course of action is to apply to the court for orders in relation to your grandchildren.
Court orders
You are able to apply to court for orders in relation to your grandchildren.
You can apply for orders that your grandchildren spend time with you and communicate with you, and in some cases for orders that the children live with you. It is a question of what is in the best interests of the children.
In determining what is in a child’s best interests, the court looks at the nature of the relationship between the child, each of the child’s parents and other persons (including grandparents).
It is not necessary that you have a ‘good’ relationship with both parents in order to have a relationship with your grandchildren, but it certainly helps to maintain an open communication with both parents. At the end of the day, however, the court’s focus is on the child’s relationship with you.
Be aware that badmouthing a parent to your grandchildren or establishing ‘sides’ can backfire – it may affect your relationship with your grandchildren and subsequently your access rights. Stay open and positive, provide a low-stress and loving environment, and allow your grandchildren a sense of consistency and normality through these difficult times.
Know your role
Your role as a grandparent is vital to the emotional wellbeing of a child. It is important to understand your role thoroughly, as well as to know when and where to ask for advice and assistance. The Attorney-General’s Department provides useful information about the role of grandparents.
Case in point
In the case of Samuels v Errington (No. 2) [2007] FamCA 507, the court considered on appeal the best interests of the child and subsequently awarded custody to the grandparents.
The facts of this case are extreme. The grandparents had applied to the court for their grandchild to live with them in Tasmania.
The child had primarily lived with his mother his whole life, except for one year where he lived with his grandparents. His father, who was unable to care for him, supported the grandparents’ application for residency.
The mother herself had a difficult childhood, had a dysfunctional relationship with the father, and was brought to the attention of child protection authorities
for neglect, leaving the child with inappropriate carers, and verbal and physical abuse of the child (including attempting to suffocate him). This had resulted in the child being temporarily removed from the mother’s care and placed in the care of the grandparents – although the length of time in their care was not agreed and caused some confusion.
During this time the mother had a new partner who was later convicted of child pornography offences and jailed.
One month, on a visit with his maternal grandmother, the child was placed on
an aeroplane to Perth, unbeknownst to the paternal grandparents, to live with his mother.
The grandparents commenced proceedings in the court seeking the return of the child, and that the child live with them on a final basis.
At first instance, the child was ordered to live with his mother from 2007.
Once the paternal grandparents were informed that the mother was again living with the convicted boyfriend, the grandparents commenced further proceedings in the court, and were denied.
The grandparents launched a massive publicity campaign and appealed once again to the court. On appeal the application was allowed.
The appellate court held that it was in the child’s best interests for him to live with his grandparents because of the need to protect the child from physical and/or psychological harm from subjection to or exposure to abuse, neglect or family violence which was present in the mother’s household. This was particularly the case where the mother had breached the Judge’s previous order preventing her from leaving the child alone with her partner, and the mother herself admitted that her relationship with the child was seriously flawed.
The court also considered that the grandparents had whenever they had the opportunity provided a caring, loving and supportive household for the child, and that the child wished to live with the grandparents.
Lastly, the court ordered that despite the child living with the grandparents, the mother, father and grandparents should share parental responsibility for the child regarding all major long-term issues.
At Amicus Lawyers, we can provide advice and guidance on all matters relating to grandparent access following separation.