Grandparent and Step-Parent Custody Rights in NSW
Grandparent and Step-Parent Custody Rights in NSW
When a family separates, grandparents and step-parents sometimes lose contact with children they have been closely involved with — not because of anything they did, but because the parents' conflict spills over into the extended family. Australian family law recognises that children benefit from relationships with people beyond their biological parents, and it provides a legal pathway for grandparents, step-parents, and other significant people to seek parenting orders.
But the process is not straightforward, and the court's threshold for granting orders to non-parents is higher than many people expect.
What the Law Says
Under Section 65C of the Family Law Act 1975, any person "concerned with the care, welfare or development of the child" can apply to the FCFCOA for parenting orders. This includes:
- Grandparents
- Step-parents (including de facto step-parents)
- Aunts, uncles, and older siblings
- Other relatives or family friends who have played a significant role in the child's life
You do not need the parents' permission to file an application. However, you do need to demonstrate to the court that making orders involving you is in the child's best interests — the same standard that applies to disputes between parents.
The Practical Hurdles
While the law allows non-parents to apply, the court starts from the position that parents are the primary decision-makers for their children. A grandparent or step-parent seeking "spends time with" orders (the legal equivalent of visitation) must show:
1. An established relationship with the child. The court looks for evidence of a meaningful, ongoing relationship — regular care, school pickups, holiday involvement, emotional bonding. A grandparent who saw the child once a year at Christmas has a weaker case than one who provided after-school care three days a week.
2. That the child benefits from the relationship. Under the amended Section 60CC best-interests factors, the court considers whether maintaining a relationship with the grandparent or step-parent promotes the child's emotional wellbeing and stability.
3. That the parents' refusal to allow contact is not justified. If a parent is withholding contact because of genuine safety concerns (the grandparent's home is unsafe, the step-parent has a history of violence), the court will not override that decision. But if the refusal is driven by spite, post-separation anger, or an attempt to punish the other parent through their family, the court is more likely to intervene.
Mediation First
The same Section 60I mediation requirement applies to non-parents. Before filing an application, you must attend Family Dispute Resolution and obtain a Section 60I certificate — unless a safety exemption applies. In practice, this means contacting a Family Relationship Centre or private mediator and inviting the parent(s) to a joint session.
Many grandparent disputes are resolved at mediation. A neutral mediator can help the parent see that the child's relationship with their grandparent is separate from the parental conflict, and can establish a practical contact schedule without the cost and stress of court proceedings.
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Step-Parent Applications
Step-parents face an additional layer of complexity. The court must weigh the step-parent's relationship with the child against the biological parents' rights and the child's existing care arrangements. A step-parent who lived with the child for five years and was a primary caregiver has a strong foundation. A step-parent who was in the child's life for six months has a much harder case.
If you are a step-parent and the relationship with the child's biological parent has ended, you have no automatic right to ongoing contact — but you can apply for orders if the relationship with the child was significant and the child would benefit from maintaining it.
What Orders Non-Parents Typically Receive
Courts rarely grant "lives with" orders to grandparents or step-parents unless the parents are unable to care for the child (incarceration, serious addiction, child protection involvement). The more common outcome is "spends time with" orders — for example, every second Saturday from 10am to 4pm, or one weekend per school holiday period.
The court tailors the order to the child's age, the geographic distance between homes, and the existing parenting schedule. Orders for grandparents are designed to supplement the parenting plan, not compete with it.
Building Your Case
If you are considering an application, start documenting your relationship with the child now: photos, text messages, school event attendance, medical appointments you took the child to, and any written communications where the parent acknowledged your role. Contemporaneous evidence carries more weight than retrospective recollections.
The NSW Custody & Parenting Plan Guide covers the full application process, including how non-parent applications interact with existing parenting orders and consent orders.
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