Deciphering the rights of stepparents and grandparents can be tricky. The relationship between a child and a stepparent or grandchild can be as equally precious and meaningful as one with a parent. The family unit is forever evolving, and it is becoming more common for stepparents and grandparents to be increasingly involved in the raising of a child. This means that children develop strong and significant bonds with the stepparent or grandparents that are raising them or helping to raise them.
However, unlike parents, stepparents and grandparents do not have an immediate right of custody. When issues arise within the family unit it can mean a stepparent or grandparent is pushed out and denied access from the child/ren. This article gives general insight into the rights of stepparents and grandparents under the law.
Can a Stepparent Get Custody of a Child?
Under the Family Law Act (the Act), a stepparent means a person who:
- is not a parent of the child; and
- is, or has been, married to or a de facto partner of, a parent of the child; and
- treats, or at any time while married to, or a de facto partner of, the parent treated the child as a member of the family formed with the parent.
Whilst stepparents often perform the same duties as a parent, they have no legal right to custody of the child.
As such, when relationships end with a spouse it can be difficult to reconcile also ending your relationship with a stepchild. There are options stepparents may pursue in order to keep spending time with your stepchild. You would first speak with the biological parent/s of the child/ren to see if you could come to an informal agreement or Parenting Plan regarding spending time with the child/ren.
If reaching such an arrangement is impossible or causing conflict, you may apply to the Court to have parenting orders put into place. Section 65C of the Act sets out who may apply for a parenting order. A stepparent would fall under s65C(c), “any other person concerned with the care, welfare or development of the child”. There is no specific criteria or test so this will be determined on a case-by-case basis.
The Court’s paramount consideration will always be what is in the best interest of the child and in the case of stepparents, their right to see the child/ren will always be superseded by that of the biological parents.
Grandparents have slightly more concrete standing than stepparents, however they are still not the official guardians of a grandchild/ren and therefore do not have an automatic right to assert custody. A grandparent may apply to the Court for custody of a child or children if:
- the parents are going through a particularly difficult separation or divorce and the grandparents feel as though the children are not receiving proper parenting;
- the children are being neglected or abused;
- the parents are unwilling or unable to care for the child/ren.
65C of the Act sets out who may apply for a parenting order. A grandparent would fall under s65C(ba), “a grandparent of the child”. The parenting order can either award full custody to the grandparent/s or it may be shared with the parent/s. Similarly, the orders may set out that the child/ren not live with the grandparents but spend significant time with them.
As with any parenting order, the Court will only recognise the right of a grandparent to spend time with or assume custody of a child so long as it is what is in the best interest of the child. One of the primary considerations under the Act is the benefit to the child having a meaningful relationship with both parents. The Court will not award custody to grandparents if it will hinder the child having a meaningful relationship with its parents. Depending on the age of the child/ren, the Court may take into account their feelings and wishes so as to best serve their interests.
If you are wanting to apply the rights of stepparents and grandparents, before you can make any application to the Court, you must first attempt dispute resolution such as mediation. In such, you and the biological parents can create a parenting plan which can set out when you see your stepchild or grandchild and how often. It is a good option if you are looking to avoid heavy legal fees. It is important to take mediation seriously before you decide to apply to the Court as litigation can be very stressful and financially and emotionally draining on you and your family.
THE RAMSDEN FAMILY LAWYER TEAM
Obtaining advice from an experienced family lawyer is especially important in any case that involves the wellbeing of children, including the rights of stepparents and grandchildren.
Our team of experienced family law solicitors can assist you if you are experiencing problems with your parenting matters. If you require assistance with your parenting matters, we invite you to contact us on 1300 749 709 to discuss the options available to you. Our family law team at Ramsden Lawyers offer a free 30 minute consultation and we would love to be able to assist you.