Grandparents Raising Grandchildren: The Challenges, Legal Rights: How Grandparents Can Gain Custody

Across the world, an increasing number of grandparents are stepping in as primary parents for their grandchildren, often out of necessity rather than choice. In many cases, these grandparents become legal custodians, taking on the full responsibility of raising children at a time when they had expected to enjoy retirement.

In Australia, as in many other countries, grandparents play a vital role in family life. Traditionally, they provide emotional support, occasional childcare, and cultural continuity. However, shifting social, economic, and personal circumstances are forcing many into full-time parenting roles.  

Whether due to parental substance abuse, mental illness, incarceration, economic hardship, or even death, grandparents are stepping in to ensure their grandchildren have stable homes.

Legal Path to Custody

When parents are unable or unwilling to care for their children, grandparents may pursue legal custody to provide stability and access to essential services, such as healthcare and education.

The process varies by country and jurisdiction, but in Australia, grandparents can seek legal arrangements through the Family Court or local child protection agencies. Courts generally prioritize the child's best interests, considering factors like the grandparents' ability to provide a safe and nurturing environment.

Emotional and Financial Toll

Taking on a parenting role later in life presents significant challenges. Many grandparents live on fixed incomes, relying on pensions or retirement savings that were not designed to support child-rearing expenses. Healthcare costs, schooling, and everyday living expenses can strain financial resources.

Beyond the financial burden, the emotional impact can be overwhelming. Many grandparents experience stress, anxiety, and even depression as they navigate the challenges of raising children while coping with their own aging-related health issues.

Sleep deprivation, physical exhaustion, and the demands of modern parenting—such as managing school technology and social media—can add to the strain.

Disrupting the Golden Years

For many, retirement is a time to travel, pursue hobbies, and enjoy a slower pace of life. Becoming a custodial parent upends these plans. Instead of relaxation, these grandparents face school runs, homework, teenage angst, and parenting decisions they thought were behind them. Social lives often shrink as priorities shift to childcare, making isolation a common struggle.

Still, many grandparents find deep purpose and fulfillment in raising their grandchildren. They often report a strong sense of love and duty, knowing they are providing their grandchildren with a safe and stable home.

What Legal Rights Do Grandparents Have in Australia?

Australian family law recognizes the significant role grandparents can play in a child's life. Under the Family Law Act 1975, grandparents are explicitly mentioned as eligible to apply for parenting orders regarding their grandchildren. However, they do not have an automatic right to custody or contact—the law prioritizes the child's best interests above all else.

Over time, Australian family law terminology has evolved. Traditional terms like "custody" and "access" have been replaced with "parenting orders," "live with," "spend time with," and "parental responsibility."

For clarity, this article uses "full custody" to refer to situations where a grandparent has the child living with them, "visitation rights" for court-ordered contact, and "shared custody" for arrangements where caregiving responsibilities are divided between grandparents and parents.

While this may sound like a lot or feel confusing, many grandparents seek legal guidance to navigate the process, and lawyers who specialize in family law, like Attwood Marshall Family Lawyers in Sydney, can help clarify options and ensure the right steps are taken.

What Are Your Custody Options as a Grandparent?

Grandparents in Australia may pursue several different types of arrangements:

Full Custody (Primary Caregiver Role)

In this arrangement, the child lives primarily with the grandparent, who assumes day-to-day care responsibilities. Courts generally prefer children to remain with their parents but will consider grandparent custody if parents are unable to provide proper care or if the child would be at risk with the parents.

Situations warranting full grandparent custody might include parental incapacity due to severe mental illness, substance abuse, incarceration, death, or when there's evidence of abuse or neglect in the parent's care.

Visitation Rights (Contact Orders)

Even if not seeking full custody, grandparents can apply for orders to spend regular time with their grandchildren. This is particularly relevant when parents are preventing contact that would benefit the child. These orders can specify regular visits, holiday time, or even phone/online communication.

Shared Custody

In some cases, care of the child might be shared between grandparents and parents. This could involve the child spending certain days of the week or specific periods with the grandparent.

Such arrangements might be appropriate when a parent is struggling but not entirely unable to care for the child or when maintaining strong connections with both parent and grandparent serves the child's best interests.

How to Navigate the Court System? Your Step-by-Step Roadmap

The path to obtaining custody or visitation rights typically involves several steps:

1. Family Dispute Resolution (Mediation)

Before court proceedings, Australian law usually requires parties to attempt mediation through Family Dispute Resolution (FDR). A certified mediator will help facilitate discussions between grandparents and parents to reach a voluntary agreement. If successful, this agreement can be formalized as a parenting plan or converted to consent orders filed with the court.

If mediation fails, the mediator issues a Section 60I certificate, which the grandparent needs to proceed to court. In urgent or high-risk cases involving child safety concerns, this requirement may be waived.

2. Court Application

If mediation doesn't resolve the matter, grandparents can apply to the Federal Circuit and Family Court of Australia (FCFCOA) for parenting orders. This involves filing an Initiating Application along with supporting documents and the Section 60I certificate (or details of exemption). The application should outline the specific arrangements sought, whether full custody, visitation, or shared care.

3. Interim Orders and Urgent Hearings

In cases where immediate action is needed to protect a child, grandparents can request interim (temporary) orders or urgent hearings. This might apply when a child faces an immediate risk of harm, potential abduction, or has been abandoned. The court can make temporary arrangements while the full case proceeds.

4. Court Proceedings

The court process typically involves several hearings. Both grandparents and parents can present evidence through affidavits, witness testimony, and relevant documents. The court may order a Family Report — a professional assessment of the family situation by a consultant or psychologist — to help determine what arrangement best serves the child.

In complex cases, an Independent Children's Lawyer might be appointed to represent the child's interests separately.

5. Final Orders

After considering all evidence, if the parties haven't reached an agreement, a judge will make final orders detailing who the child will live with, contact arrangements, and decision-making responsibilities. These orders are legally binding, and all parties must comply with them.

What Will the Court Consider?

All decisions about grandparent custody are governed by the "best interests of the child" principle. The court considers multiple factors:

• Child Safety: Protecting the child from physical or psychological harm, abuse, or neglect is paramount. If a parent poses a risk to the child's welfare, and a grandparent can provide a safer environment, this strongly favors the grandparent's application.
• Meaningful Relationships: The court examines the benefit of the child maintaining relationships with significant people, including both parents and grandparents. A strong existing bond between grandparent and child can support a custody application.
• Child's Wishes: If the child is mature enough to express reasoned views, the court will take these into consideration. The weight given to a child's preferences increases with age and maturity.
• Existing Relationships: The nature and history of the child's relationships with parents, grandparents, and other significant people are important factors. If a child has been living with grandparents for some time or has a particularly close attachment to them, this could favor a continued arrangement.
• Impact of Changes: The likely effect of any changes to the child's living situation is carefully considered. Courts are cautious about disrupting stable arrangements unless necessary for the child's welfare.
• Grandparent's Capacity: The court assesses whether grandparents can meet the child's physical, emotional, and educational needs. Factors like the grandparents' health, age, financial stability, and parenting skills are relevant considerations.
• Cultural Connections: For Aboriginal and Torres Strait Islander children, maintaining a connection to culture and extended family is particularly important and may influence custody decisions.

No single factor is decisive — the court weighs all considerations to determine what arrangement will best support the child's overall well-being, development, and safety.

Where Can You Turn for Help? Essential Resources Every Grandparent Should Know

Grandparents seeking custody have several support options:

• Legal Assistance: Legal Aid and community legal centers can provide advice and possibly representation. Many offer specialized services for older clients or grandparents raising grandchildren.
• Family Relationship Centers: These government-funded centers provide mediation services and can help draft parenting plans if agreements are reached.
• Financial Support: Grandparents who gain custody may qualify for government assistance through Centrelink, including Family Tax Benefit, childcare subsidies, and other payments. Services Australia offers a dedicated Grandparent Adviser service (1800 245 965) to help navigate available benefits.
• Support Groups: Organizations like Grandparents Australia and local community groups provide emotional support, practical advice, and advocacy for grandparents raising grandchildren.

Success Stories and Cautionary Tales: Real Cases That Reveal What Works

Australian courts have granted custody to grandparents in various situations. For instance, when both parents were deemed unfit due to substance abuse or neglect, courts have awarded custody to grandparents to ensure the child's safety and well-being. In cases where one parent has passed away and the other is largely absent, grandparents who have been the child's primary caregivers may be granted formal custody to maintain stability.

However, courts have also denied grandparent custody applications when parents are deemed capable of providing adequate care. The consistent message from case law is that custody is awarded based on the child's best interests—not simply because grandparents wish to have custody or believe they could offer a "better" home.

Securing Custody or Visitation: Key Takeaways

Australian law provides grandparents with a legal pathway to seek custody or visitation, but success hinges on proving that the arrangement serves the child's best interests. Courts prioritize stability, safety, and emotional security, considering factors such as child safety, existing bonds, the child's wishes, and cultural connections.

To strengthen a case, grandparents must demonstrate their ability to meet the child's physical and emotional needs. Seeking legal advice, using support services, and focusing on the child's welfare—rather than personal desires—can improve the chances of a favorable outcome.

Grandparent Custody Laws in Other Countries

Grandparents seeking custody of their grandchildren face different legal frameworks depending on the country. While all prioritize the child's best interests, the legal process and likelihood of success vary. Here's an overview of key considerations in the United States, United Kingdom, Canada, and New Zealand:

United States

Grandparent custody laws differ by state, with each setting its own rules for when and how grandparents can seek custody or visitation. Generally, courts may grant custody if parents are deemed unfit due to issues such as substance abuse, incarceration, neglect, or abandonment. Some states recognize de facto or psychological parent status for grandparents who have acted as primary caregivers. The U.S. Supreme Court case Troxel v. Granville (2000) established that parental rights take precedence, making it challenging for grandparents to override a fit parent's decisions. However, in extreme cases, courts prioritize the child's welfare and may grant custody to grandparents.

United Kingdom

In the UK, grandparents do not have automatic rights to custody or visitation but can apply for a Child Arrangements Order if they can prove they have a meaningful relationship with the child and that continued contact is in the child's best interests. If both parents are unfit or unable to care for the child, grandparents may apply for a Special Guardianship Order (SGO), which grants them long-term custody rights without severing the legal relationship between the child and the parents. UK courts prioritize maintaining family connections while ensuring the child's stability and welfare.

Canada

Canada's family law varies by province, but generally, grandparents can apply for custody or access (visitation) through provincial courts. In Quebec, grandparents have a legal right to apply for visitation unless it is deemed against the child's best interests. In other provinces, grandparents must demonstrate that they have played a significant role in the child's life and that maintaining the relationship benefits the child. Courts consider factors such as parental fitness, family dynamics, and the child's well-being. If parents are unfit, grandparents may seek full custody through a guardianship or adoption process, depending on the circumstances.

New Zealand

In New Zealand, grandparents seeking custody must apply for a Parenting Order under the Care of Children Act 2004. While parents have primary rights, grandparents can be granted custody if it serves the child's best interests. If both parents are unable to care for the child due to issues like neglect or addiction, grandparents can seek full guardianship.

Māori customary law also plays a role in some cases, particularly when extended family members (whānau) step in to care for children as part of traditional caregiving structures. Courts prioritize the child's cultural and emotional stability when making custody decisions.

Common Themes Across Countries

• Courts prioritize the child's best interests over all other considerations.
• Grandparents must prove that their involvement is necessary for the child's well-being, especially in cases of parental neglect, abuse, or incapacity.
• Legal hurdles vary, with some countries requiring additional steps (such as permission to apply for custody) before courts will hear a case.
• Alternative caregiving options, such as guardianship, kinship care, and special custody orders, may be available depending on the legal system.

Grandparents seeking custody should consult a family law specialist in their respective country to understand their legal rights and the best path forward.

Resources for Grandparents Seeking Custody or Visitation Rights

​Grandparents seeking custody or visitation rights for their grandchildren can access various resources across different countries. Below is a list of major government and nonprofit organizations in Australia, the United States, the United Kingdom, Canada, and New Zealand that provide information and support on this topic:​

Australia:

• Family Relationships Online: An Australian government initiative offering resources and information to assist families, including grandparents, in building better relationships. ​
• Raising Children Network: Provides comprehensive information and resources for grandparents and kinship carers, including legal advice and support services. ​

United States:

• AARP's GrandFamilies Guide: Offers information on legal rights, financial assistance, and support services available to grandparents raising grandchildren. ​
• Generations United: A national organization that supports grandfamilies by offering resources, policy updates, and programs aimed at assisting grandparents raising grandchildren.​

United Kingdom:

• Family Rights Group: Provides advice and support to grandparents and other family members raising children who are unable to live with their parents, including legal guidance and advocacy services.​
• Kinship – formerly Grandparents Plus: A national charity that champions the role of grandparents and the wider family in children's lives, especially when they take on caring responsibilities.​

Canada:

• Parent Support Services Society of BC: Provides support circles, legal information, and resources for grandparents and other relatives raising children in British Columbia.​
• Canadian Grandparents Rights Association: Advocates for the rights of grandparents to access and custody of their grandchildren, offering resources and support for navigating the legal system.​

New Zealand:

• Grandparents Raising Grandchildren Trust NZ: Offers support, information, and advocacy for grandparents who are primary caregivers to their grandchildren, including legal advice and support groups.​
• Oranga Tamariki—Ministry for Children: The New Zealand government agency responsible for child welfare, providing information on legal custody, guardianship, and support services for caregivers.​

These organizations and government agencies offer valuable information and support to grandparents seeking custody or visitation rights, helping them navigate legal processes and access necessary resources in their respective countries.

Impact of a Grandparent's Declining Health

When grandparents take on the role of primary parents for their grandchildren, they provide stability, love, and support. However, as one or both custodial grandparents age, declining health can present significant challenges—not just for their own well-being but also for the child's continued care.

Long-term care needs can impact a grandparent's ability to fulfill their parenting responsibilities, making planning for potential care transitions and support systems essential.

• What is Long-Term Care

In countries with national long-term care programs, such as Australia, the United Kingdom, and New Zealand, some government assistance may be available for in-home care or facility-based care when a grandparent's health deteriorates.

However, in nations like the United States and Canada, long-term care is often a private responsibility, with Long-Term Care Insurance being a critical tool for covering the cost of home health aides, assisted living, or nursing home care.

Without a plan in place, a custodial grandparent's declining health could disrupt the child's living arrangements, forcing difficult decisions about who will take over caregiving duties. 

Even with financial resources, finding high-quality care can be a challenge, particularly for custodial grandparents who need in-home assistance while still actively raising a child.

In the United States, the LTC News Caregiver Directory provides a valuable resource for finding qualified caregivers and long-term care facilities. This can help ensure that one grandparent receives the care they need while the other continues to meet parental responsibilities.

For custodial grandparents, early planning is crucial. Exploring long-term care options, securing financial resources for potential care needs, and identifying family or community and government support systems can help ensure that both the grandparent and the grandchild continue to have the stability and security they need—even in the face of aging and health challenges.