Raising grandchildren – is the law supportive enough?

By Will Story for the Family Advocate, Winter 2023

I recently read an article about a retired grandfather who was struggling to navigate “the system” and secure financial support to care for his grandchild. The child’s father was placed in police custody on a raft of charges and his mother had died five years prior. It caused me  to reflect on some of the cases that I had been involved with as a family lawyer representing grandparents, many of whom walked a very hard road to have the Court legally recognise their relationship with their grandchildren.

The natural love and affection of grandparents for their grandchildren means that in many families, they are always there – on “standby” – and ever willing to step in at a moment’s notice to mind their grandchildren. For Māori, the concepts of manaakitanga, whanaungatanga and mana tamaiti provide context for the key role which grandparents often play in sharing the role of caring for their mokopuna.

In Aotearoa New Zealand, family violence, mental health issues, drug and alcohol addiction issues and criminal offending can be a reality for some parents, leaving them unable to care for their children at a given time. It is all very well when a child’s biological parents or legal carers consent or acquiesce to the child being cared for by their grandparents, or maintaining regular contact with their grandparents as the case may be, but what happens when there is a fallout between parents and grandparents? What happens when Mum finishes rehab? Or when, as in this case, Dad has served his sentence for his wrongdoings and is now ready to resume care of his son? Often grandparents have lingering concerns for their grandchildren and worry that history might repeat itself. What is in the best interests of the child?

All too often when disputes arise grandparents can feel on the back foot. By black letter law, they are. According to the law, a child’s care, development and upbringing should be primarily the responsibility of his or her parents or guardians. The law places emphasis too on the need for continuity in a child’s care arrangements, and a child’s relationship with his or her whānau or iwi needs to be strengthened and preserved. However, if a parent or guardian is fit and able to safely resume care for their child, no matter how long they may have been standing in, grandparents can often lose out. They can face quite an uphill battle to convince the Courts that they are better placed, long-term carers for their grandchildren.

A Lack of Legal Standing

For a start, grandparents don’t have legal standing or an automatic right to make an application under the Care of Children Act 2004 – they have to apply for leave first. While more often than not leave will be granted without too greater question, the first hurdle can be symbolic of the series of obstacles which follow.

For those who can’t afford a lawyer, legal aid may be available. But legal aid is only a loan and can result in a caveat being placed on your property title. Not exactly endearing for the average retiree. And for those who can afford it, there is a sense of injustice in having to pay for something which they are having to do simply because they are duty bound.

For grandparents, the Court hearing process can be drawn-out, costly and divisive. Litigation can’t be very attractive to those in their senior years, many of whom are endeavouring to quietly enjoy retirement and life at a slower pace. I can think of more than one grandparent I have represented who has been broken by their experience of the Court process. In my experience, grandparents can leave the process feeling undervalued, taken for granted and despondent. Thankfully, there are a number of support groups such as the Grandparents Raising Grandchildren Trust which provide invaluable support to grandparents tasked with bringing up their grandchildren.

An Alternative to Court

As an alternative to the taxing Court process, Family Dispute Resolution (FDR) is available to anyone involved in a dispute relating to the care of children – and that includes grandparents. In contrast to an adversarial hearing, FDR allows parties to explore the real reasons behind lost trust and faith in relationships – which often underly disputes between parents and grandparents. FDR presents an opportunity for parties to reach a deeper understanding of the conflict and, most importantly, an opportunity to reflect on how that conflict is impacting on the children. With the assistance of an expert mediator and Preparation for Mediation provider, parties can come up with a plan which survives any “bumps in the road” which may be yet to come.

One FDR mediation which came through Fair Way involved a mother and grandmother of a child. They had shared a close and supportive relationship in the past, and the grandmother was very involved when her daughter had her first child. Life changes saw both of them meeting new partners, and rifts arose which resulted in their falling out and the grandparent being excluded from seeing the grandchild.

Examples of Mediation between Grandparents and Parents

The mediation involved difficult conversations about the past and events that had happened, which then enabled them to reach a shared understanding of the hurt feelings on both sides and their true intentions towards each other. They were able to accept how they had each contributed to the difficulties, impacting the grandchild and the wider whānau. From this newly formed perspective, they began to focus on a plan for the future centred on how to provide a safe and positive family environment for the child.

In another case, the maternal grandparents had an informal family arrangement in place. The parents of the children were suffering from addiction issues and weren’t around often, so the grandparents stepped in as carers for their daughter’s two children. During this phase, the two parents separated and went different directions, neither staying in touch with the grandparents or the kids. Several years later, the father undertook a rehabilitation programme. He acknowledged that he wasn’t ready to be a fulltime parent but was keen to re-establish contact with the kids. He had no relationship with his ex-partner’s parents or the children, but he wanted to form one. The grandparents were uneasy about their daughter’s ex being back in their lives.

FDR was the process for that conversation to happen. The mediator worked with them to begin the process of rebuilding trust between them and to establish what a safe relationship for the child and parent could look like. Over a series of conversations, they agreed to a plan to reintroduce the father into the children’s lives by inviting him to join some family events and family dinners, that would build to supervised visits between the father and children with another agreed family member present. They agreed to come back to mediation six months later, to review the arrangement and revisit the plan then.

Many of us will have heard or seen similar stories involving the parents of the parent(s). Whether it’s grandparents who have stepped in as guardians, or when their own relationships with their children have fractured and they feel excluded from their grandchildren’s lives. It can feel like an uphill battle for grandparents, where they are stuck between a rock and a hard place. FDR can provide a path for these conversations, leaving the Family Court to focus on those cases that duly deserve its attention.

About the author

Will Story BA LLB (will.story@fairwayresolution.com) is an experienced family lawyer (not practising) and Operations Manager of Family Services at Fair Way Resolution Limited.