When we think of those most affected by divorce, we immediately think of the children and obviously the couple themselves, but rarely are the grandparents in anyone’s thoughts. That is why family lawyers from Davies & Co are often employed to help not only couples who are divorcing but also the grandparents, specifically for the reason that they are able to see their grandchildren and, in some cases, to pursue custody of them.

As the parent of the parent of children, grandparents often play a huge role in the upbringing of their grandchildren. During the week, they may actually spend more daytime hours with very young children of parents who work than the parents themselves. For this reason, and others, the bond that exists between grandparents and their grandchildren can be extremely strong.

When a couple separates and divorce proceedings begin, there can be animosity between them, and as such, that may be directed towards the parents of the other partner. As such, those grandparents might be denied any kind of contact with the children for no other reason than they happen to be the parents of one of the parties to a divorce.

If this were to happen, there is a provision within the Family Law Act 1975 for grandparents to request that the court grant an order that they are allowed to visit and spend time with their grandchildren.

Those provisions are not necessarily there for the benefit of grandparents, as it applies to anyone who might have a relationship with children of divorcing parents. The law exists so that the best interests of children are served, and often the court rules that this is achieved by the children being allowed to spend time with people that they have a close relationship, apart from their parents.

As such, there could be a list of individuals whom the court accepts the children should be able to see, although, in the vast majority of cases, their grandparents are the most likely to be on that list.

In Section 65C of the Family Law Act 1975, there is actually a specific reference to grandparents, and this highlights the value that is placed by Australian family law upon how much grandparents can have a positive influence on the upbringing of their grandchildren.

When the court is making its considerations with regard to grandparents being able to visit and spend time with their grandchildren, it will apply certain principles in terms of the welfare of those children. These include the following:

  • Shielding children from cruelty, assault, abuse, and other risks
  • Benefits of the children having a positive relationship with their grandparents
  • What form does the interaction between children and their grandparents take
  • How willing are grandparents to contribute to and fulfil the children’s educational and social needs

There are varying degrees to which a grandparent will have a role in a child’s life, and this can go as far as them actually having custody of the child or children. This can happen when the court deems that the parents are unfit, incapable, or cannot support the children.

Another arrangement that might apply includes an informal arrangement between a child’s parents and one set of their grandparents. Here it might be agreed that the children live with their grandparents for a limited period due to certain circumstances, but in law, the parents still have parental responsibility for those children.