Grandparents' Custody Rights in Australia

Australian family law gives grandparents a clear legal pathway to seek parenting orders — including orders that a grandchild live with them. It's not a simple process, and grandparents face a higher burden than parents, but the right exists and courts regularly make orders in favour of grandparents when the circumstances warrant it.

The Legal Basis

Under Section 65C of the Family Law Act 1975, any person "concerned with the care, welfare or development of the child" can apply for parenting orders. Grandparents explicitly fall within this category.

This means grandparents can apply for:

• Orders that the child live with them (what's traditionally called "custody")
• Orders that the child spend time with them (regular contact)
• Orders about communication (phone calls, video calls)

The court can also allocate parental responsibility to a grandparent — the legal authority to make major long-term decisions about the child's education, health, and religious upbringing.

What Courts Consider

Grandparents' applications are assessed under the same Section 60CC best interests test as any other parenting matter. The six factors (post-May 2024 reforms) are:

1. The child's safety
2. The child's views
3. Developmental, emotional, and cultural needs
4. The capacity of each proposed caregiver
5. The benefit of maintaining safe relationships with parents and significant relatives
6. Any other relevant circumstances

Factor 5 is particularly significant for grandparents. The court must consider the benefit to the child of maintaining relationships with significant relatives, including grandparents. An existing close bond between grandchild and grandparent carries genuine weight.

When Grandparents Typically Apply

The Parents Are Unfit or Absent

The strongest grandparent applications involve situations where both parents are unable to provide adequate care — due to substance abuse, incarceration, mental health crises, homelessness, or child protection involvement. In these cases, courts routinely make orders for grandchildren to live with grandparents.

One Parent Is Blocking Contact

If a parent (particularly after the death or absence of their partner — the grandparents' child) cuts off contact between the grandchildren and grandparents, the grandparents can apply for "spend time with" orders. Courts generally support maintaining grandparent relationships unless there's a genuine safety or welfare reason for the restriction.

Kinship Care in the Northern Territory

In the NT, where a significant proportion of families are Aboriginal or Torres Strait Islander, kinship care — children being raised by grandparents, aunties, uncles, or community members — is a well-established cultural practice. The post-2024 reforms strengthen this by requiring courts to consider the child's right to maintain connection to their Aboriginal or Torres Strait Islander culture, country, and kin.

The FCFCOA's Indigenous Lists in Darwin and Alice Springs offer modified courtroom procedures and Indigenous Family Liaison Officers to support culturally safe proceedings for kinship carers.

The Process

Step 1: Attempt FDR

Like parents, grandparents must attempt Family Dispute Resolution before filing for parenting orders (unless a violence or urgency exemption applies). An FDR practitioner will assess whether joint mediation with the parents is appropriate and attempt to broker an agreement.

Step 2: File an Initiating Application

If mediation doesn't resolve things, file an Initiating Application (Form 1) with the FCFCOA, attaching your Section 60I certificate. Filing fees are the same as for parents ($455-$895 from 1 July 2026).

Step 3: Present Your Case

You'll need to demonstrate:

• Your existing relationship with the grandchild
• Your capacity to provide a safe, stable home
• Why the proposed arrangement serves the child's best interests
• Why the parents' current arrangement is inadequate (if you're seeking primary care)

Affidavit evidence, character references, school reports, and (where relevant) child protection records all support your application.

Realistic Expectations

Courts prioritise the parent-child relationship. A grandparent seeking to take over primary care from a functional parent faces an uphill battle. But when parents are genuinely unable to provide adequate care, or when a parent is unreasonably blocking grandparent contact, courts are willing to make robust orders.

Legal costs for grandparent applications are comparable to any other parenting matter — potentially $15,000-$50,000+ if contested through to trial. Legal Aid may be available for eligible applicants, particularly in child protection-adjacent situations.

The Northern Territory Child Custody & Parenting Plan Guide covers the legal framework for grandparent and kinship carer applications in the NT, including the Indigenous List process, kinship care provisions, and how to navigate the FCFCOA as a non-parent applicant.

See more Northern Territory guides →