Grandparents raising grandchildren - Legal aspects

by Maretta Twentyman & Debbie Dunbar - Morrison Kent

It is not uncommon these days for grandparents to be involved in raising their grandchildren. In fact, at the time of the 2013 census there were 9,543 grandparents in parenting roles throughout New Zealand (which is where grandchildren and grandparents live in the same household, without the parents).

This can happen for a number of different reasons. For example, the grandchildren may have been placed in their care by Child Youth and Family Services (CYFS), the parents may not be coping and the grandparents may need to step in, or the grandparents may hold safety concerns for the children and apply to the Family Court for care and contact (which used to be known as custody and access) under a parenting order.
  
The Grandparents Raising Grandchildren charitable trust (www.grg.org.nz) reports that over 95% of the families they work with are raising grandchildren because of a traumatic event or family breakdown. No matter what the situation, it is important for people to get early legal advice to understand their rights and options.
  
The legislation dealing with parenting issues in New Zealand is the Care of Children Act 2004 (“the Act”). The Act encourages parents and other people involved in the upbringing of a child to reach their own agreements on these matters, but if that is not possible then an application may need to be made to the Family Court. This could be for a parenting order (which deals with care and contact), and/or a guardianship order (which deals with who has the legal right to help make important decisions for a child).
  
It is usually advisable for grandparents to apply for both parenting and guardianship orders, if they are seeking to take on a primary role in caring for a child. Whether or not this is appropriate will depend on the circumstances, so it is best to speak with a family lawyer.
Whilst the law recognises the important role grandparents have in a child’s life, they are not eligible to apply for a parenting order “as of right”. This means that they first need special leave (permission) of the court to make an application. There are some exceptions to this - where a parent of the child has died, been refused contact by a court, or is making no attempt to have contact with the child.

Whether or not you can, or should, apply immediately to the Family Court will depend on the particular facts of your case. If there are issues of urgency, violence or safety concerns, then you may be able to apply without notice (urgently). In other situations, you will first need to go through the Family Dispute Resolution (‘FDR’) process, and complete the Parenting Through Separation course.

If you would like any further information or advice please contact either of the article authors: Maretta Twentyman or Debbie Dunbar, or the Morrison Kent Wellington office  (04) 472-0020. 



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