Legal Issues For Grandparents Raising Children

 

For many grandparents raising grandchildren, one of the most difficult challenges they face involves the court system. Legal and court systems are expensive, emotionally draining and can be difficult to navigate, but are often necessary.

There are many options to consider when deciding what is best for you, your grandchild and the birth parents. Prior to making any decisions regarding custody, seek professional advice and review all your options. Avoid making hasty decisions during a crisis.

The following provides general descriptions of these options. Please note that laws vary from state to state and laws are subject to change at any time. Therefore, use the information provided below as a beginning point and seek legal advice for updated information and information relevant to your state and situation. Also note that pro bono (without charge) legal representation is available as well as legal clinics. Contact information is provided below.

 

Prandparent and Grandchild

 

 

Adoption

Formal legal agreement granted by the court which ends the legal relationship between a child and her or his birth parents. Adoption permanently transfers all parental rights from the birth parents to the adoptive parents. Unlike legal custody, adoption is permanent and cannot be modified if the birth parent becomes able to care for the child.

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Adoption Assistance for Special Needs Children

Children with special needs, which make it highly unlikely that she or he can be adopted without adoption assistance, may be eligible for adoption assistance. The factors or conditions which may be considered "special needs" include:

  • ethnic background
  • age
  • membership in a sibling group
  • documented medical conditions
  • physical, mental or emotional disabilities

Eligible children may receive one or more of the following types of assistance:

  • one time only payment for non- recurring adoption expenses
  • payment for medical services which are not covered through public or private insurance or other public resources
  • necessary counseling services for the adoptive family and child following the adoption

Monthly payments in an amount that is determined for each child, based on the child's needs and the circumstances of the family, may be paid. Conditional adoption assistance may be available for children who at the time of the adoption do not meet the eligibility criteria, but may be at risk for future physical, mental or emotional disability.

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Educational Consent

Allows an adult who is raising a child without legal custody or guardianship to enroll that child in the school district where that adult lives.

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Grandfamilies State Law & Policy Resource Center

A collaboration between Casey Family Programs, the American Bar Association’s Center on Children and the Law and Generations United, this Center provides information about state laws and legislation in support of grandfamilies. They offer a searchable database of current laws and pending legislation. They also include links to laws giving preference to placement with relatives, making it less likely that children will enter the formal system in the first place. 

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Help for Grandparent Caregivers
from the Grandparent Caregiver Law Center

The Samuel Sadin Institute on Law of the Brookdale Center On Aging of Hunter College in New York received a grant from the Nathan Cummings Foundation to establish a Grandparent Caregiver Law Center. The Center was created to address the financial and legal issues faced by grandparents who are the primary caregivers of their grandchildren.

In an attempt to address the legal and financial issues faced by grandparents, the Center has produced the "Help for Grandparent Caregivers" Guide. It is a free online publication. The guide was published specifically for New York State grandparents and relative caregivers (aunts, uncles, brothers, sisters, etc.) who are caring for their grandchildren but much of the information is applicable nationwide and certainly offers a starting point for conversations with an attorney.

The guide offers additional information on many of the sections described above. Please note the date of publication. Current laws may have changed slightly but, the guide can provide useful background information from which to start.

In order to view the guide, you will need the Adobe Acrobat Reader installed on your computer. This reader is free and only takes a minute to download. This reader will also let you print the information. Click below to download.  

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Kinship Foster Care

Kinship foster care is temporary or long-term care that is provided by a grandparent or other relative to a child who has been removed from the home because of child abuse or neglect (determination of abuse/neglect must be made by the Department of Social Services), voluntarily placed in foster care by the parent, or placed in foster care by a court. Legal custody of the child resides with the State agency. The foster parents have only physical custody of the child. Kinship foster parents cannot make any major decisions regarding the care of the child without first obtaining consent of the State agency. Kinship foster care payments may include money or assistance for food, clothing, shelter, daily supervision, school supplies, personal needs of the child, medical and dental care, social services and supportive services such as counseling. Kinship foster care parents must follow the rules and regulations regarding foster care placement.

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Legal Custody

Formal agreement in which custody of grandchildren is granted to a grandparent by the court. Grandparents assume legal authority to make decisions. Birth parents remain financially responsible for the children. Even though the birth parents' rights are temporarily suspended by the court, the parents have the right to visitation.

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Mediation

Mediation is a form of dispute and conflict resolution that can be for cases whereby the parents and grandparents have trouble communicating with each other. For instance, a mediator such as a family therapist, may talk separately or with both parties and attempt to reach a plan for raising the child or establishing visitation. Mediators may be social workers who mediate between social service agencies and grandparents and/or parents to work out decisions that are in the best interest of the child. Mediation does not work in all cases. There is no one model for mediating. However, mediation is successfully being used in cases involving grandparents, grandchildren and birth parents to resolve conflict and aid decision-making.

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Medical Consent

Allows a custodial parent or other legal custodian to authorize another "adult in whose care the minor child has been living" to consent to health care for a child through the use of a notarized consent form.

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Negative Interactions with Birth Parents

There may be occasions where the parents are not in a stable living situation or are participating in activities that you think could have negative effects on your grandchild during visitation. If this is the case, you may want to consider the following suggestions:

  • ask the parents to schedule the visits for a particular time so you have time to prepare the children
  • ask other cooperative relatives to be present for the visit

You could ask the court to limit the parents' contact with the children at the time that the guardianship order is issued (if there are problems with visits or phone calls). If there is a previous visitation order, you can file a motion to modify that order if problems with an uncooperative parent persist. However, the parent can also file a motion to change the original order. If there is a real risk that the parents may endanger the children - that is, if parents have, in the past, left them alone or with an irresponsible person, taken them someplace dangerous or physically abused them, then visits should take place under the supervision of the guardian or a mutually agreed upon person. If the parents do not agree to this, you may have to ask the court to resolve this matter.

Do not degrade the grandchildren's birth parents in front of them - talk to other adults, such as those in a support group, instead. You can let your grandchildren know that you can be angry and upset with someone's behavior and still love and care about them.

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Physical Custody

Informal agreement in which grandparents are caring for grandchildren in their home without official or legal authority by a court. Grandparents have no formal rights or legal authority to make decisions regarding the child. Birth parents retain all rights and responsibilities of children.

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Private Guardianship

Private guardianship is a legal arrangement in which an adult has the court-ordered authority and responsibility to care for a child. In most counties you file for private guardianship of a child in Probate Court. Guardianship may be necessary if:

  • a child's parents die
  • if the child has been abandoned
  • if the child is not receiving adequate care
  • if the child is being abused in some way

Guardians of related children have the authority to:

  • consent for medical treatment
  • handle school enrollment
  • obtain documents, such as birth certificates
  • stop birth parents from taking the child out of their home without getting consent from the court

Under private guardianship, rights of the birth parents are not severed. Birth parents retain the right to:

  • contest the guardian's power
  • request regaining custody of the child
  • reasonable visitation.

Birth parents, if able, must contribute money to support the child.

Once private guardianship is ordered by the court, the child must live with the guardian. Private guardianship can only be transferred back to the birth parents by the court.

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Private Subsidized Guardianship

Private subsidized guardianship is a new permanency option only for children who are in kinship foster care. Subsidized guardianship involves the transfer of legal responsibility for a State ward to a private caregiver, such as a relative caregiver, who becomes the legal guardian of the child. To be eligible for this program, there are certain criteria that must be met. This includes:

  • recommendation by the child's State caseworker
  • the child must have been a ward of the State for two years or more prior to establishing subsidized guardianship
  • child resided with the prospective relative caregiver for at least one year
  • both reunification of the child with birth parent and adoption have been ruled out as a permanency goal option
  • the child must have a strong bond with the caregiver
  • the caregiver must have a strong commitment to the child
  • the prospective guardian has no record of felony convictions

Subsidized guardianship does not involve termination of parental rights. Birth parents remain legally liable for the financial support of the child even though the decision-making authority of the child is granted to the guardian. Once private guardianship is established only the court would have authority to remove the child, and families would no longer require the intervention of the State.

Depending on the particulars of the situation for which you became a grandparent caregiver, you may at some point encounter problems with your grandchildren's birth parents. If you have legal custody of your grandchildren, you may be able to get either an Order of Protection or Supervised Visitation in court.

Order of Protection
This is an order issued by a judge that orders the parent to stay away from you, your grandchildren and your home. Failure to abide by a court order is cause for police arrest. You file for an order of protection with the court.

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Factors to Consider in Determining
What are Reasonable Expectations for Visitation

The parent should be sober for the visit. The visitation schedule should take into account the child's bedtime, regularly scheduled activities and school. It should also accommodate the parent's schedule including work, counseling, mandatory programs, and available free time if in work release.

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Standby Guardianship

This law states that a parent or legal guardian of a minor may designate, in writing or by petition to the court, a standby guardian to become legally responsible for the minor in the event of the parent or legal guardian's terminal illness, debilitating illness, or future incapacitation.

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Supervised Visitation

If you are worried about the safety of your grandchildren during visitation with birth parents, you may ask a judge to order that all visitation by your grandchildren and the birth parents be supervised.

Note: Both orders of protection and supervised visitation may be modified as situations change, or as the court determines.

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Visitation Rights for Grandparents

Sometimes, family dynamics are such that the grandparents and the parents of a child do not get along or there are other reasons that a parent do not want the grandparents to have the right to visit their grandchild.

Several decades ago, increasing numbers of grandparents were being denied a legal right to visit their grandchildren because of family feuds. In response, grandparents joined together to get laws passed assuring grandparents the right to petition for visitation in the case of parental death or divorce.

Eventually, all states passed legislation related to this issue. But then a problem arose: once the laws were established, it was found that grandparents who had visitation in one state would have to litigate all over again if their grandchild's custodian moved to another state.

In 1998, Congress passed the Visitation Rights Enforcement Act. This guarantees that grandparents can visit their grandchildren anywhere in the United States as long as they have visitation rights in one state. This law does not impose a federal decision about a grandparent's visitation right in any state. It calls for reciprocal recognition of grandparents' rights once a state has established those rights.

If you are a grandparent who does not have custody of your grandchild, consult with an attorney about your rights.

 

 

*We gratefully acknowledge that the information on this page (except for the consent, standby guardianship, and visitation sections) is from the Illinois Department on Aging's "Starting Points for Grandparents Raising Grandchildren".

 

Holding Hands

 

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