Grandparents
Raising
Grandchildren
Legal Issues in Caring for Your Grandchildren
As a grandparent raising your grandchildren,
you might not have imagined being involved with
the legal system. But if your grandchildren live with you for a long
time, you may eventually need legal support and advice to provide the best
care for them. It’s important for you to understand laws affecting grandpar-
ents raising their grandchildren. The following information is a brief
introduction to the legal system as it applies to grandparents caring for their
grandchildren. This fact sheet is NOT intended to substitute for actual legal
advice. If any of these legal issues affect you, your first step is to seek advice
from a qualified attorney.
Communication Is Key
If your grandchildren’s parents are still involved in their lives, it’s important
to communicate about legal issues that affect their children. As a grandpar-
ent raising your grandchildren, you need to be able to register your
grandchildren for school and take care of their medical needs. But unless you have legal custody of your grand-
children, their parents are still legally responsible for those decisions. Talk with the parents, and try to agree on
how to handle these issues. Remember that what’s best for the children is most important!
Consent Laws Legal Custody
Some states have what are called “consent laws,” In order to have legal responsibility for your grand-
which allow your grandchildren’s parent to sign a form children, you need to get some type of legal custody.
giving you the right to enroll the children in school and Legal custody gives you more rights in relation to your
to seek medical care for them without going to court. grandchildren’s care. The courts will make custody
Your grandchildren’s school or pediatrician’s office and visitation decisions based on what they think are
may have a copy of the consent form. the best interests of the children.
Consent forms do not give you legal custody of your
grandchildren. If you and the children’s parents ever Reaching an Agreement on Custody
disagree about their care, the parents are still legally Any type of custody is simpler if parents and grand-
responsible for making the decisions. parents agree. No matter what type of custody the
Legal Issues in Caring for Your Grandchildren
Talk with a lawyer about how to get started
with either of these strategies. Remember
to consult your lawyer before you sign any
agreements.
Types of Legal Custody
In most states, there are three ways to
obtain legal custody.
n Custody Order: In most states, a cus-
tody order from a judge is the most
common way to get legal custody of
your grandchildren. When you get a
custody order, you are responsible for
grandparents are seeking, family conflict the child’s day-to-day care, including
can be reduced or eliminated if parents and seeking medical treatment and
grandparents sort out custody issues enrolling them in school. With a cus-
together. Custody is easy to decide in some tody order, the children’s parents
cases, but sometimes parents and grand- continue to have a legal relationship
parents have trouble coming to an with the children. The parents have the
agreement. Keep in mind that what’s best right to visitation (unless a judge
for the children should guide all of your denies or limits the visits), and could
discussions and decisions. request custody again some day.
If you want to work things out together, but Many families like custody orders
are having a hard time agreeing on what’s because they are relatively easy to get
best for the children, you might consider and still allow the parents to play a legal
one of the legal strategies. role in the children’s lives. A custody
order may be a good choice if there is a
n Negotiation: In negotiation, the chance that the parents will take the
lawyers take the lead in working out a child back. If there is a problem with a
custody plan. You and your lawyer sit parent, ask your lawyer to make sure
down with the parents and their court records state why the parents
lawyers to work out a custody plan. could not care for your grandchild.
n Mediation: After you talk with your n Legal Guardianship: With legal
lawyer, you and the parents can sit guardianship, similar to a custody
down together, with or without lawyers order, you accept day-to-day responsi-
present, with a person trained to help bility for the children but the parents
people work out disagreements. retain some rights. The main differ-
ence is that legal guardianship is
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Grandparents Raising Grandchildren, Cooperative Extension, The University of Georgia
Legal Issues in Caring for Your Grandchildren
usually granted in probate court (the stamps) or health insurance coverage
same court that handles wills after for your grandchildren?
someone dies). Probate court has dif- H How would each choice affect the If you want to
ferent rules and standards than parents’ ability to visit the children? work things out
superior court, where custody orders H How would each choice affect the together, but are
are usually decided. If you are declared parents’ ability to ask that the chil- having a hard
your grandchildren’s legal guardian, dren return to their custody? time agreeing
you may have to return to court peri- on what’s best
odically to report on your care of the n Adoption: Adoption is a permanent for the children,
children. Your lawyer can tell you more arrangement. If you adopt your grand- you might
about this requirement. children, you become their legal parent consider
in every way, and the legal relationship legal strategies.
If you are trying to decide between a cus- between the grandchildren and their
tody order and legal guardianship, consider parents ends. If you adopt, the parents
asking your lawyer the following questions. cannot request custody later. It may
The answers to these questions vary from sound strange to adopt your own
state to state and sometimes even across grandchildren, but sometimes it may be
counties. Considering these questions can the best choice. Adoption is the only
help you decide which type of custody is legal way to ensure that you will raise
better for your family. your grandchildren permanently. The
H Which type of custody would cost major reason to choose adoption is to
more, take longer, and require return give your grandchildren the safety and
trips to court? security of knowing that you will care
H How would each choice affect cash for them permanently.
benefits (such as TANF or food
Adoption is a very serious step that
requires careful thought, and it’s not
the best choice for all families. Of
course, adoption is simpler if the
child’s parents agree to it. Parents who
agree can voluntarily give up their
parental rights so the grandparents can
adopt.
If the parents don’t agree that adoption
is the best choice for the children, dis-
cussing adoption may cause conflict
between parents and grandparents. If
this happens, discuss the issue calmly
and rationally. Give clear reasons why
adoption is best for the children. Talk
about whether the parents will still
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Grandparents Raising Grandchildren, Cooperative Extension, The University of Georgia
Legal Issues in Caring for Your Grandchildren
Child support visit the children. Above all, protect
should be the children from being caught in the
negotiated at the middle of the conflict. Help them
time of custody or understand that you love them and
legal guardianship want what’s best for them.
agreements. Each
state has guidelines
to help parents and Child Support
grandparents agree If you have legal custody or guardianship
on a fair amount. of your grandchildren but have not
adopted them, the court may require the
children’s parents to pay child support to
you. Child support can help make raising setting with someone watching. If the par-
your grandchildren more affordable. ent should not be visiting the child at all, a
Receiving child support also sends the judge can issue a legal protection order to
message that the children’s parents care keep the parent away from you and your
enough to help with the costs of raising grandchildren.
them. Parents who pay child support tend
to visit their children more often and stay It is your responsibility to make sure pro-
more involved in the children’s lives. tection orders are not violated. If you have a
protection order, call the police any time the
Child support should be negotiated at the parent tries to violate it. Remember that the
time of custody or legal guardianship protection order was issued for the safety
agreements. Each state has guidelines to of your grandchildren. Don’t feel guilty
help parents and grandparents agree on a about insisting that the parents follow it.
fair amount. If the parents were not mar-
ried when the children were born, you may
have to go through a legal process to estab- Choosing a Lawyer
lish the children’s paternity before support Paying a lawyer might seem like an unnec-
can be collected from the father. Keep in essary expense. But if you’re trying to
mind that if you legally adopt your grand- make decisions about custody and child
children, you give up your right to receive support, a good lawyer is crucially impor-
child support from the parents. tant. An experienced lawyer can advise you
about the consequences of different types
of legal custody and help you decide what
Emergency Protection would be best for your family. Your lawyer
If your grandchildren’s safety is in jeop- can help you work out agreements with the
ardy, especially from an abusive parent, parents and will represent you in court
there are laws that can protect you. Once when you seek custody.
you have any form of legal custody, a judge
may order supervised visitation, so the par- Shop around for a lawyer who meets your
ent can visit the children only in a safe needs. Explain your family situation, and
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Grandparents Raising Grandchildren, Cooperative Extension, The University of Georgia
Legal Issues in Caring for Your Grandchildren
tell the lawyer about the kinds of decisions
you need to make. Ask questions about the
lawyer’s training and experience. Choose a
lawyer who has worked with cases similar
to yours, and who can effectively represent
the interests of you and your grandchil-
dren. Look for someone who listens
carefully and shows you respect. It’s
important to have at least one meeting with
a prospective lawyer before you decide
whom to hire. Most lawyers do not charge
for a first visit.
If You Can’t Afford to Pay
Remember that paying a lawyer to repre-
sent you is a good investment. But if you change an unfair law or challenge an
need a lawyer and can’t afford to pay one, unfair state policy, you might find an
you still may be able to get good legal help. interested pro bono lawyer. Call the
Try contacting some of the following. state bar association and ask for ideas.
n Legal Services or Legal Aid. These Lawyers have an ethical duty to do
government-sponsored law offices help their best in every case, whether or not
low-income people with common legal the client is paying. If you feel you are
problems. Look in the government not getting good service, talk to your
pages of your phone book for the Legal lawyer or your lawyer’s supervisor
Services office near you. Call to set up about the problem.
an appointment before you go.
n Law School Clinics. If there’s a law In Summary
school near you, see if they have a As a grandparent raising your grandchil-
clinic that provides low-cost legal help. dren, you may need to help make decisions
If you go to a law school clinic, a law about custody and child support for your
student will work on your case, super- grandchildren. There are several different
vised by an experienced lawyer. To options. Work with your grandchildren’s
find out what programs exist, call the parents to decide what will work, and get
law school dean’s office. help from a good lawyer. Above all,
remember that your grandchildren’s needs
n A Pro Bono Lawyer. Some private should come first. Choose the arrangement
lawyers will work on a case for free, that’s best for them.
especially if the case will help more
than one family. If you’re trying to
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Grandparents Raising Grandchildren, Cooperative Extension, The University of Georgia
Legal Issues in Caring for Your Grandchildren
References
AARP. (2004). Legal issues for grandparents raising grandchildren. Retrieved December
15, 2008 from http://www.aarp.org/family/grandparenting/articles/grandparents-
legal.html.
Jendrek, M. P. (1994). Policy concerns of white grandparents who provide regular care to
their grandchildren. Journal of Gerontological Social Work, 23, 175-200.
Flint, M. M., & Perez-Porter, M. (1998). Grandparent caregivers: Legal and economic issues.
In K. Brabazon & R. Disch (Eds.), Intergenerational approaches to aging.
Binghamton, NY: Haworth Press.
Stanton, A. M. (1998). Grandparents’ visitation rights and custody. Child and Adolescent
Psychiatry Clinics of North America, 7, 409-422.
Developed and released by Dr. Diane Bales, Human Development Specialist,
Cooperative Extension, The University of Georgia. The Grandparents Raising
Grandchildren series was adapted, with permission, from the Grandparents as
Parents series originally developed by the University of Kentucky Cooperative
Extension and released by Sam Quick. For more information, go to
http://www.gafamilies.org or call 1-800-ASK-UGA1.
The University of Georgia and Ft. Valley State University, the U.S. Department of Agriculture and
counties of the state cooperating. Cooperative Extension, the University of Georgia College of
Agricultural and Environmental Sciences, offers educational programs, assistance and materials
to all people without regard to race, color, national origin, age, gender or disability.
An EqUAl OppOrTUniTy EmplOyEr/AFFirmATiVE ACTiOn OrGAnizATiOn
COmmiTTED TO A DiVErSE WOrk FOrCE
publication # CHFD-E 59-7 revised July, 2009
Grandparents Raising Grandchildren, Cooperative Extension, The University of Georgia