13th July 2021
Family law is not easy. Roughly 120,000 couples got married in 2018. In that same year, nearly 50,000 couples got divorced.
Australian couples constitute a wide range of family arrangements. Some share biological children, while others share adopted or step-children. Parental rights, step-parent's rights, and grandparents rights tend to clash together, especially during divorce.
Wherever you are in your marriage, you need to distinguish amongst these three sets of rights. What are they? How does the law decide custody?
Get the facts you need right here. Here is your guide on parental responsibility.
The Family Law Act regulates parental rights and responsibilities. Birth parents and adoptive parents have the same rights and responsibilities. The same applies to same-sex couples.
Parents enjoy a special status. They have the right to act in the best interests of their child. They can decide where to send their child to school and where the family should live.
Both parents can raise their child according to their beliefs. The state cannot interfere with discipline, religion, and medical treatment.
Yet parents must act responsibly toward their child. They must provide food, shelter, and safety for them. If they do not, the state can prosecute them and reassign the child to other parents.
Parents may consult with other adults on care for their child. But they possess the ultimate authority for making decisions. This authority continues until the child turns 18.
A father can decide to waive his own parental rights. Most parents waive them to allow their child to be adopted.
It is rare for any other kind of waiving to occur. It can happen for a father who has a violent criminal history or significant mental illness.
Waiving parental rights is a serious action that should not be taken lightly. In circumstances beyond adoption, it should come after mediation and counselling have failed.
During a separation, a couple can visit the Family Court to decide parental rights. The two parties will have to go through a mediator first. Afterwards, the court will hear both parties and issue legal orders that determine parental rights.
Within these hearings, a father can ask to waive his parental rights. Both parties need to agree that this is the right thing to do. Courts are extremely reluctant to grant such a request, so both parties must make a serious effort.
The Family Court must consider the exposure of children to violence when drafting parenting orders. If the father assaults or deprives his child of food, the Court will likely provide sole parental responsibility to his spouse.
In adoption scenarios, parents relinquishing their rights must receive counselling. This includes receiving information about the implications of adoption. They then must write a consent form that allows someone else to adopt their child.
A mother cannot unilaterally terminate her spouse's parental rights. She must go to the Family Court.
The mother must provide substantial reasons for why her spouse's rights should be terminated. This includes domestic violence and child neglect. Being a "bad parent" is not reason enough unless the child's health is significantly threatened.
The reasons why the spouse cannot have parenting rights must be substantiated. The mother should provide a full report with witness statements and evidence of a break-down in communications. They should detail why joint parenting would create incredible problems for the child.
A mother's parental rights can be terminated, on her own initiative or someone else's. There is no differentiation between a mother's rights and a father's. The processes for termination are the same.
A parent who has sole custody has complete responsibilities over the welfare of their children. The other parent has no say in how their child live, even if they are a biological parent.
The other parent has no expectation of visiting or remaining in contact with their child. The parent with custody may grant short visitation periods to the other parent. They can also deny the other parent access.
Conversely, the other parent has no expectation to provide financial support. The parent with custody must pay for all bills and expenses themselves.
There are very rare circumstances in which both parents' rights are terminated. This occurs when both parents subject their children to abuse or violence. The Family Court will place the child into foster care.
A child may contact their parents after they turn 18. The state will not stop them from doing so. Parents may be able to visit their child if they make a request.
The S4 Family Law Act provides the legal definition of a "step parent." A step parent is not a biological parent of the child but is or has been married or partnered with a child's parent. They must treat the child as a member of their own family.
They can be of any gender identity or sexual orientation. They can have biological children of their own.
A step parent can assume a parenting role. They can discipline children and shape how they should live. But they do not assume an automatic legal responsibility, even after marrying a child's biological parent.
The step parent must apply to the Family Court in order to get official legal rights. They can apply for a Parenting Order with permission from the child's biological parents. They can assume full parental responsibility, or they can receive responsibilities for specific issues only.
A step parent can adopt a child, but only under very limited circumstances. The most common one is that the child's biological parents are deceased. The step parent can apply for an Adoption Order and receive full rights.
They can also become a legal guardian. They can apply to the State Supreme Courts for an Order of Guardianship. A natural parent can appoint them as the legal guardian when making their will.
However they assume parental rights, the step parent has the same rights over their child as a natural parent. They can decide how to raise and help the child live.
A step parent does have some limited protections if they don't take any action to secure parental rights. The state cannot force them to provide spousal maintenance. They are under no requirement to include stepchildren in their will.
Step parents can receive visitation rights, though how they can get them depends on the situation. If they separate from a child's natural parent before making a Parenting Order, their ability to get visitation is limited. They may be able to negotiate with the parent on times to see the child.
If they separate after making a Parenting Order, they can modify the Order to allow visitation. A step-parent's case is far stronger if they have legal standing as a parental figure of the child. But they will almost certainly not receive visitation if the natural parent doesn't want them to visit.
If the child's biological parent dies, the step-parent can appeal to the Family Court. They can make a Parenting Order allowing them to visit the child. If the child's other natural parent is able to care for the child, the Court will likely provide full custody to them.
After a child turns 18, a step-parent can reach out to them. It is the child's decision on whether or not to return the communication.
Grandparent rights are rarely discussed in family court. But they are important to understand, especially when a court must make custody decisions.
While a child is in the care of their natural parents, grandparents do not have substantial rights. Parents can turn to them to consult on how they should care for their child. But there is no expectation or responsibility for grandparents.
If a grandparent manages to assume custody of a child, they can exercise the same rights as a natural parent. But the process of getting custody is difficult.
A child can live with their grandparents. The parents and grandparents can make an informal arrangement, allowing the grandparents to exercise some responsibilities. They can provide food and financial support for the child while they are living with them.
The parents can make this informal arrangement a formal one through a consent order. In this order, the parents can clarify the times their child should be staying at their grandparent's house. They can cede legal responsibilities to them during those times.
Grandparents can be named as guardians in a will or Parenting Order. If the child's parents were to die, they can assume custody of the child.
Grandparents can get visitation rights through a consent order. The parents can maintain their parental rights while setting aside time for the grandparents to visit.
Visitation rights are not the same as custody rights or parental responsibility. Grandparents may receive supervised visitation, during which someone else watches over the period.
Whatever type of visitation they receive, the grandparent cannot mandate actions for the child. They can play games and perform activities with them. But they cannot exercise parental rights during that time.
Under the Family Law Act, a grandparent can apply for a Parenting Order. They can do so when a child's parents are unable or unwilling to care for the child.
The grandparent needs to supply a strong case for their case. They should include substantiating documents, including witness testimonies speaking to the failures of the parents.
Parents always have stronger protections than grandparents. Most grandparents lose their custody battles. But they can win if the case is strong enough.
No understanding of parental rights is complete without understanding childrens' rights. Australia ratified the Convention on the Rights of the Child in 1990. This is a United Nations document that defines the rights of children, including in legal settings.
The Convention acknowledges that governments should protect parental rights. But the Convention also gives children the right to know and receive care from their parents.
They cannot be separated from their parents unless separation is in their best interests. During separation, children should maintain contact with both parents, unless contact would harm them.
Children also have the right to freedom of expression and thought. This includes a say in decisions that affect them. They also have the right to legal representation in court.
There is no explicit mandate for children to be consulted during separation proceedings. But the Family Court should make an effort to loop them in. If a child wants to live with one parent in particular, the Court should respect that desire.
Under the law, children have the right to enjoy a meaningful relationship with both natural parents. This means that the Family Court usually allows joint custody and visitation rights.
A child's desire to remain with one parent can be superseded if that parent is abusive. The Family Court will take whatever action they see fit to promote the best interests of the child.
Parental rights are sacrosanct in family law. Parents have the authority to raise their children, with broad latitude. But one parent's rights can be waived if they choose to, or if they pose a threat to their child.
Stepparents have no natural rights. They must submit an order to the court to receive visitation or parental responsibility.
Grandparents rights are limited. They do not have automatic visitation. They must apply to the courts for anything, including custody.
Turn to the experts in family law. Koolik and Associates is Queensland's leading firm. Contact
Please note the contents of this post is information only and not legal advice.
If you require legal advice it is best to contact one of our lawyers who can review your particular circumstances and then provide tailored advice according to your needs.
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