Whenever the matter of visitation rights with respect to children within a marriage that has seen parents get divorced is discussed, a certain group of people is omitted from that discussion, and that is the child’s grandparents. Family lawyers at www.culshawmiller.com.au are approached every day by grandparents of children who have been effectively cut out of that child’s life, having done nothing wrong themselves.

Often the only reason that they find themselves unable to see their grandchildren, is that they happen to be parents themselves, and their son or daughter just happens to be on the other side of the fence of the ex-spouse who is the parent of their grandchildren. As a result, and especially when a divorce is acrimonious, it can mean grandparents are on the outside looking in, and as such have no contact with their grandchildren.

Almost all the legal frameworks with regards to children of divorced parents are found within the Family Law Act of 1975. This act, rightly or wrongly, does not state nor stipulate that grandparents have any rights with regards to their grandchildren such as the right to have contact with them.

However, it is not just with regards to grandparents that the Family Law Act has something to say about rights. Parents themselves, under the law, have no rights with respect to their children. Instead, parents have a responsibility for the welfare of their children, and this point brings us to one of the fundamental intentions of those who legislated and brought the Family Law Act on to the statute books.

At its core, the Family Law Act’s provisions for almost all matters relating to children is that whatever decisions are made, they must always be made in the best interests of the child. This fundamental principle means that regardless of what rights the parents, or any other family members may believe they have, they are but nothing, if they mean the best interests of a child are not served.

For grandparents that core principle means that, whilst they might not in law have any legal right to see  or visit their grandchildren, if the Family Court believes that it would be in the best interests of the child to have that contact, then it will more than likely make an order that facilitates it. This would regardless if a child’s parent, objected to that contact.

Just as most courts will take the view that a child’s best interests are served by having contact with both parents, it will almost certainly also take the same view with regards to having regular contact with their grandparents.

Taking this point further there may be circumstances that mean grandparents feel that in the child’s best interest they should have custody of the child. This would occur in circumstances where the parents are unfit to have responsibility for the child, such as being heavy drug users, are unable, such as being in prison, are unwilling, or in more tragic circumstances where sadly both the child’s parents have died.

Again we must emphasise that simply because a child’s grandparents might seem the most logical alternative, there is no automatic right that they should become the child’s guardians and take over the parental responsibility for that child. The Family Court must be satisfied that it would be in the child’s best interest for their grandparents to be the ones responsible for them, versus another family member.