Parenting orders for grandparents: The Markle Debacle

The father of Meghan, Duchess of Sussex, Mr Thomas Markle, not having met his grandchildren yet and appearing to face difficulties in this regard, may ask the following question: “I am not a parent. Can I still get parenting orders?”

By Richard Crane, Practice Leader at Australian Family Lawyers, Joondalup, Perth

The short answer is maybe. 

It depends on your circumstances and the applicable law where you reside. Based upon the law in Australia, the following information is of a general nature only. It should not be relied upon as specific legal advice to your particular circumstances.

If you are concerned with the care, welfare and development of a child, then you may be able to apply for a parenting order. This includes grandparents. Keep reading to learn more about how parenting orders work for parents, grandparents and other non-parents.

What is a parenting order?

A parenting order (whether made by consent or otherwise) is an order of the Family Court stating the care arrangements for the child/children. This includes:

•  with whom the child/children will live;
• with whom the child/children will have contact (usually specifying the contact); and 
• such other ancillary orders as may be sought or ordered.

If parenting orders are sought by consent, then it may not be necessary to issue proceedings. An application can be made and dealt with ‘on paper’, with no attendance required at court.

Parenting orders in court

If the potential parties cannot agree upon parenting orders without issuing proceedings, then mediation is usually compulsory before being able to apply (unless urgent or unless mediation is deemed unsuitable by the mediator).

In deciding whether to make a particular parenting order, the Family Court must regard the best interests of the child as the paramount consideration.

The relevant legislation to be applied by the Court sets out what is called the ‘primary considerations’ and the ‘additional considerations’ in relation to how the Court should determine what is in a child’s best interests.

Whilst the ‘primary considerations’ only refer to the child’s parents (including requiring the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents), the ‘additional considerations’ include requiring the Court to consider the following (but not limited to the following): 

• the nature of the relationship of the child with other persons (including any grandparent or other relative of the child); 
• any views expressed by the child (depending on age, maturity, etc.); 
• the extent to which each of the child’s parents has fulfilled, or failed to fulfil, their obligations to maintain the child; 
• the capacity of each parent, grandparent or another relative of the child to provide for the needs of the child (including physical, emotional and intellectual needs); 
• the likely effect of any change to the child’s circumstances (including any separation from any grandparent or other relative of the child).

All relevant matters should be taken into account in deciding what is in the child/children’s best interests, not just the ‘primary considerations’.

In some cases, there may be a reasonable basis for arguing that the maintenance (or establishment) of a meaningful relationship between a child/children and a non-parent may be equally important, or even more important, than the maintenance (or establishment) of such a relationship between the child/children and the parent(s).

When the Court is asked to deal with parenting issues and make parenting orders, the particular facts of each case will be unique. There may be very good reasons why children should be living with or having contact with non-parents.

It is not parenthood that is crucial to the child’s best interests, but parenting and the circumstances in which it is offered or given.

Parenting orders for grandparents

In the case of Thomas Markle, he has not spoken to his daughter since she married Prince Harry about three years ago. He has not met his grandchildren Archie and Lilibet yet.

It appears that a deep rift between them developed after Mr Markle was allegedly caught staging the paparazzi photos in the lead-up to the Duchess’s wedding.

Mr Markle was recently interviewed in the USA and said he fears he will never meet his grandchildren as his health continues to deteriorate. He was quoted as saying: “All I can say is that I hope eventually I get to see these grandchildren of mine. I’m a pretty good grandpa”. 

There can be many advantages to a child having a meaningful relationship with a grandparent. Perhaps you have many happy memories of times spent with your grandparent(s) when you were a child.

It is often said that grandparents can spoil their grandchildren in a good way, by showing them just how special they are. It could be said that some retired grandparents living locally to their grandchildren can offer more time, life experience, treats (in a good way), and one-to-one attention to their grandchild’s needs than the working parents are able to.

Mr Markle says he is a pretty good grandpa. In the case of Archie and Lilibet, should a court ever be required to determine what is in their best interests in the absence of consent, including any time that their grandpa may spend with them (if the legislation in the USA is similar to Australia), then it would be in the court’s discretion taking into account all relevant factors that apply to the Markle family, when making a decision about a parenting order for the grandparent.

If you’re looking for more advice as a non-parent in Australia, you can learn more about your legal rights as a grandparent here, and your legal rights as a stepparent here. Otherwise, request a callback from our friendly team via the form below.