LEGAL ISSUES Overview of legal issues:
The legal information presented in this section is intended for educational purposes only, not to advise grandparents/relative caregivers or professionals. If you have specific legal questions, please contact an attorney who will be able to respond to the individual facts of your case. Bar Associations have websites in most (if not all) states. They sometimes provide information on family law that may be of assistance to grandparents/relative caregivers. The American Bar Association has a website (abanet.org) that can be used to access their lawyer referral program in the United States (by clicking on the state). Lawyer referral programs match clients with lawyers for a low consultation fee; if legal representation is necessary, the lawyer will advise what their fee will be. Also, for grandparent/relative caregivers with low incomes, Legal Services and Legal Aid offices are available. They should look in their phone books under “legal services” or “legal aid.” The legal system can be overwhelming for professionals and grandparents, especially those with limited financial resources. There are many financial and emotional challenges to raising a grandchild. Grandparents should consider all their short-term and long-term options before deciding they want custody. Getting formal legal custody, guardianship, or adoption can be time consuming, expensive and emotionally exhausting. Also, some grandparents choose to raise grandchildren informally because they don’t want to sue the parents, their relatives, for legal custody or guardianship. They also may not want to become foster parents and give up legal custody of the children to the state. There are several chapters in “To Grandma’s House We … Stay” (link to info on this title in National Resources) that focus on some of the issues that grandparents need to address before making a legal commitment to raising a grandchild. This section addresses legal issues that are common for grandparents who are raising grandchildren. The Challenge-Response Framework, which provides a means for conceptualizing many of the legal challenges that grandparent caregivers face as well as potential responses to those challenges, can be downloaded from http://www.uwex.edu/ces/flp/grandparent/legalres.html. Some of the specific challenges that grandparent caregivers face include recognition, authority, legal relationships, financial resources, and other resources. For more detailed information about legal issues for grandparent-headed families, national and state-level resources are located at (link to section on National Resources).
Informal Custody:
If there is an informal care arrangement, is there any legal threat that children will be taken from the grandparent’s home? If grandparents provide informal care for grandchildren, but do not have some form of a legal relationship, they have no legal rights in regard to the grandchildren. This means that
the child’s parent can take the grandchild away from the grandparent at any time – even if the child’s parent had no contact or paid no support to the grandparent.
Formal Custody & Guardianship:
Is there a legal difference between guardianship and legal custody? In most states, in order to get legal custody the grandparent must sue the parents in court for custody and prove that the parent is unfit. The court then determines how to award custody based on the best interest of the child. If the grandparent gets awarded legal custody, he or she can make major decisions about the child (except for specific decisions stated by the court or the parties in the final court order) and access many services. Major decisions may include giving a minor child permission to marry, to enter military service, or to get a driver’s license. Grandparents or other relative caregivers also can authorize non-emergency health care and make choices about school and religion. There is, however, no termination of parental rights or responsibilities and the parent could choose to return to court to try and regain legal custody. Grandparents will need an attorney who will help them petition for custody. If you do decide to pursue guardianship – or want more information about it – the specifics vary by state. Legal guardianship is similar to legal custody, but is usually obtained through a different court with different procedures. Guardianship temporarily suspends the parent's custodial rights, but allows the parent to continue to play a role in the child's life. As with custody, guardianship does not suspend the rights of the biological parents. This means that the parents can go to court to try to regain guardianship of the child. In some states, being designated a “guardian” may make it easier to access more service than being called a “legal custodian.” The County Clerk’s office in any county can also provide some details on how to apply for guardianship such as the fees involved and the papers that need to be completed. In de facto custodianship, how long does this take? Where can I get information about the requirements for each state? These laws basically give caregivers the same standing as parents in custody cases if they satisfy the definition of “de facto custodian.” “De facto custodian” is defined as the primary caregiver and financial support of a child who has lived with that person for at least (1) six months if the child is under age three; and (2) one year if the child is at least age three. After the courts makes its finding that the person is a de facto custodian, he or she has the same legal standing in custody cases as a parent and his or her input concerning the child is considered by the court. Custody is then determined based on the best interest of the child. Currently, the only states with de facto custody laws are Indiana and Kentucky. Information about Kentucky’s law can be found at http://www.lrc.state.ky.us/record/98rs/SB205.htm. Several other states are planning legislation that would allow for de facto custodianship. The best way to obtain information about the requirements for your state is to contact an attorney who specializes in family law. Are parents given input in the process of determining custody and/or guardianship?
A parent is entitled to custody of his or her child unless the parent is unfit or unable to adequately care for the child. There must be serious reasons for giving custody to a third party, such as the parent’s abandoning or neglecting the child. If a parent has lost custody of a child to a third party, he or she must petition the court to have the child returned. Can a grandparent gain custody or guardianship without both parents’ permission? Generally, grandparents may be able to get legal custody of grandchildren even though the parents of the children do not agree. Usually, they must prove to the court that the parents are not fit to take care of the children and that it would be in the child’s best interests to take legal custody away from the parents and give custody to the grandparents. Both parents must be notified of the hearing and therefore be offered an opportunity to be present and participate in the hearing. If grandparents are successful, the parents may request and be awarded visitation rights by the judge. Can grandparents in one state get guardianship if the parent lives in another state? The important question is where are the kids? A legal relationship to children can usually only be obtained in a court in the county where the children live. Grandparents can try to obtain guardianship of grandchildren if the grandchildren are living with them in their state, even though the parent lives in another state. Remember, however, since parents have the right to the guardianship of their children, a court will only consider giving guardianship to someone else if the parents are unable to care for them. Guardianship will only be decided after a hearing and parents will therefore have to be advised of the court proceeding and given an opportunity to participate. What do grandparents need to do legally to keep custody when, after many years, one of the parents tries to regain custody? Legal custody is a temporary legal relationship that gives grandparents the legal right to make decisions for the children in their care. When grandparents have legal custody and parents want the return of custody, parents must go to court and ask that custody be returned to them. The court will decide whether the grandparents should continue to have custody or whether custody should be returned to the parents, usually at a hearing. The court will want to know whether the circumstances that existed, which made the court give legal custody to the grandparents, still exist or have changed, warranting a return of custody to the parents. Parents will have to show the court that they are now able to assume the care of their children. Grandparents must come to court and be prepared to answer any questions the court has for them. Is it possible to establish legal joint custody between a parent and grandparents if one parent is willing to relinquish custody of the child? It may be possible for a grandparent to have joint custody of a grandchild with a parent. With Joint Custody, the responsibility for caring for a child is shared by more than one
person – it does not require a parent to relinquish custody of a child. Joint custody is not always an option and is, mostly, subject to the court’s discretion, after a review of the facts of the case. Is it easier for one parent to get custody of a child than a grandparent? Yes. Parents have superior rights to the custody of their children than any third party, including a grandparent. Therefore, if one parent is able to care for the child, that parent will be the favored one to have custody over any other third party. If a judge orders a guardian ad litem to act on an order “as soon as possible,” how long does that take? A guardian ad litem is a special guardian appointed by the court to represent the interests of children in cases where a child (or someone who is incompetent) is involved. Judges may ask that something gets done “as soon as possible,” and sometimes those time limits must be strictly adhered to by law. At other times, Judges will specifically state when a certain task must be performed. Time limits, therefore, depend on what task the guardian ad litem is being told to do and the timetable, if any, ordered by the judge.
Standby Guardianship
If a grandparent has legal custody and the grandparent becomes ill or dies, what does the child do next? Which law do you go by? How would you name another responsible party (other than the biological parent) to care for the children? Are standby guardians appointed by the courts or by the parents? Do all states recognize standby guardianship? What is the process of getting standby guardianship when, for example, the parents are in jail?
Many grandparents have guardianship but are concerned about who can help them if they become temporarily incapacitated or who can take their place if they die. About one-third of states have an option called “standby guardianship” which can be temporary or permanent. A standby guardian takes responsibility and has legal standing only when the guardian is unable to do so, such as during temporary illness, or permanently in the case of death. The child’s parents designate the standby guardian. These laws are often important to caregivers because they allow a parent or grandparent to make a permanent plan for the child without ending his or her parental rights while living. There is a “Sense of Congress” in the Adoption and Safe Families Act (ASFA) that States should pass these laws. See www.uwex.edu/ces/flp/grg/helpart.html for a list of states that have some form of a standby guardian law. What do the laws say about grandparent caregivers giving medical and educational consent?
Grandparents with formal custody should not have problems providing educational and medical consent. Medical consent laws allow an “informal” grandparent or other relative caregiver to consent to medical, immunizations, dental care and/or mental health services on behalf of the child. The laws differ in various ways, including the types of treatment the relative can consent to, whether there must be a written document to confer consent authority, and whether the consent can be oral. About half of the states have some form of medical consent law. Some states also have educational consent laws that allow an “informal” grandparent or other relative caregiver to enroll the child they are raising in school. Only about 6 states have educational consent laws and, for those states that don’t have them, accessing school enrollment can be a severe problem. These laws differ in various ways. In some states, the caregiver signs an affidavit that the child lives with him or her. If reasonable efforts have been made to locate the parents and they cannot be found, the parent’s signatures are not required on the affidavit. In other states, informal caregivers raising children can enroll them in school by defining “parent” to include people acting “in loco parentis.” Generations United has prepared a chart about educational and medical consent in collaboration with AARP. This chart, State Laws and Regulations Affecting Grandparent and Other Relative-Headed Families, includes information about each state’s consent laws and how they impact grandparents and other relatives raising children. For more information about ordering a copy of this chart, visit www.gu.org or contact your local or state AARP office.
Adoption:
What are the advantages and/or disadvantages of adoption? Adoption is available in all of the states. This option is considered the most permanent on the continuum of permanency options. Adoption ends all of the birth parents’ rights and responsibilities. The grandparent becomes the parent in the eyes of the law. In order to adopt, parents must terminate their rights. If parents will not voluntarily relinquish custody, the parent must be declared incompetent. Social service must get involved temporarily as the child must be declared the ward of the state in order to be adopted. An advantage of adoption is that access to services on behalf of the child becomes much easier. It also means that the birth parents cannot reappear and remove the child from the grandparent’s home and reclaim parental rights and responsibilities. Some disadvantages of adoption include the potential loss of some forms of financial assistance. For example, if the caregiver has been receiving a Temporary Assistance for Needy Families (TANF) or "childonly" grant on behalf of the child, that payment will cease because the caregiver has become the "parent" and cannot qualify for this type of grant. There are certainly some financial arrangements associated with adoption, including counseling, agency expenses, and attorney’s fees. An attorney can estimate the cost of an adoption. Although some forms of financial assistance may cease, special needs children who are adopted out of foster care may be eligible for a subsidy under the Title IV-E of the Social
Security Act Adoption Assistance Program or under a state adoption subsidy program. In order to receive such a subsidy, the child must have special needs, but the definition of that term differs among the states. In some states, sibling groups and minority children may qualify as special needs. In other states, some type of physical or mental disability may be required. When considering adoption and a subsidy is needed, it is important that a caregiver consult his or her state’s particular requirements. For example, in some states, adoption subsidies are lower than foster care payments and prospective adoptive parents should consider whether in their state they would receive less financial assistance. For information about adoption subsidies in your state, go to http://www.nacac.org/subsidy_stateprofiles.html I have been raising my granddaughter since she was 18 months. My grandchild now wants me to adopt her, which I’m willing to do. Where do I start to make arrangements? In most states, it is necessary to use an attorney when adopting a child. The adoption process is long and complicated, including such things as the termination of parental rights, court hearings, and home studies. If the child’s parent has not filed a petition to terminate parental rights, the relative the child lives with must file a termination petition at the same time they file the adoption petition. When an adoption petition is filed, the court must order an investigation into whether the child is a good candidate for adoption and whether the relative’s home is suitable for the child. After the investigation is complete and the report is filed with the court, the court may hold the hearing on the adoption petition immediately after entering the order to terminate parental rights. If you have legal custody is it easier to adopt? If someone has legal custody, it shows that a court has already decided that they were able to care for the child. Legal custody is a temporary legal relationship, and unlike adoption, is not a permanent legal relationship. Although it helps to have legal custody of a child, it is no guarantee that it will be easier to adopt a child. Do I have to notify the biological father in order to adopt my grandchild? We have had legal guardianship for 10 years. The biological father has never come to see her and does not provide any financial help. The biological mother is willing to sign over all rights. Both parents or a surviving parent must consent to an adoption unless their consent is excused by the court (for example, the consent of the parent MAY NOT be required when he or she indicates an intent to forego his or her parental rights and obligations, by for example, failing to visit or communicate with the child or the person with custody, although able to do so. The court may decide this issue based on the circumstances of the case). Generally, however, no one can adopt a child until the legal rights of the biological parents have been terminated in a legal proceeding. Biological parents who have not had their legal rights terminated or who have not given up their legal rights, must be notified that someone
is seeking to adopt their children. They must be served with notice of the proceeding so that they will have an opportunity to be present and participate in any court hearing. A parent may sign over his/her rights or have their rights terminated for, among other things, permanent neglect, severe or repeated abuse of the child, abandonment or because the parent is mentally unfit. You must check with a lawyer in your state before proceeding with an adoption if the father’s rights have not been terminated and you wish to adopt the child. We’ve already been through legal adoption with continued funding from the state. What happens if we move to another state? If you are receiving funding from the state, you adopted your grandchild from the foster care system. States provide adoption subsidies to certain children in foster care to assist with his/her care after their adoption. The subsidy is given to the person who adopts the child, to help meet the child’s needs. Ask your adoption caseworker for more information on continued receipt of your funding after your move.
General Legal Issues:
Explain the Indiana Child Welfare Act (ICWA) and how it relates to grandparents raising grandchildren. The Indian Child Welfare Act (ICWA) is a federal law that governs child welfare proceedings for Indian children. ICWA must be considered in addition to state and federal statuses governing child welfare proceedings. According to this law, an Indian child is a boy or girl under the age of 18 who is either a member of an Indian tribe, or who is eligible to become a member of an Indian tribe and is the biological child of a tribal member. Under ICWA, the parent is defined as a biological parent of an Indian child, as a well as any Indian person who has adopted an Indian child. This includes adoptions under tribal law or custom. An Indian custodian is an Indian who either has legal custody of an Indian child under tribal law or custom, or state law, or has been given temporary custody of an Indian child by the child’s parent. Any relatives of the child, including grandparents, would be custodians if they meet this definition. The same rights and protections that apply to biological parents also apply to a custodian, unless the custodian is trying to remove a child from a biological parent’s custody. The tribe has exclusive jurisdiction over an Indian child when he or she lives on the reservation. Do states have a list of lawyers who would represent caregivers who can’t afford costs? Can the state appoint an attorney to represent a caregiver? To learn who may be providing free legal services in a community, grandparents should contact the state Bar Association. Ask for the name of an attorney in your area who specializes in family law. Grandparents might also contact legal aid or look in their local yellow pages.
Are there laws regarding one set of grandparents being challenged by another set of grandparents? Laws regarding third party disputes, disagreements between those who are not the parents of the children, vary by state. Where one set of grandparents is challenging another, the court will want to know where the parents of the child are so they can be served with notice of any proceedings. The court will determine what is in the best interests of the child based on the circumstances of the case.
National Resources:
BOOKS To Grandma’s House We…Stay By Sally Houtman, M.S. Copyright 1999 by Studio 4 Productions, ISBN# 1-882349-05-9 Studio 4 Productions P.O. Box 280400; Northridge, CA 91328-0400; phone: 818-700-2522 This book is for grandparents or professionals and includes information about the challenges of raising grandchildren, the grandchild’s emotional needs, coping with the grandchild’s parents, and parenting strategies. The book also includes an extensive list of resources such as readings, websites, newsletters, hotlines, and organizations. Second Time Around: Help for Grandparents Who Raise Their Children’s Kids, By Joan Callander Copyright 1999 by Book Partners Inc., Oregon This book answers many questions that are commonly asked by grandparents. Some of the topics in the book include financial advice, deciding whether to parent again, working with the system, parenting the second-time around, and supporting grandchildren with special needs. Grandparents' Guide to Navigating the Legal System This booklet contains general information about grandparents raising grandchildren, why grandparents go to court, the advantages of representing oneself, how grandparents can ease the financial burden of raising their grandchildren, and who to contact for more information. Ordering Information: National Committee to Preserve Social Security and Medicare Suite 800, 2000 K St., NW, Washington DC 20006 1-800-966-1935 http://www.ncpssm.org/issues/issues/brochures/index_temp.html WEBSITES
http://www.uwex.edu/ces/flp/grandparent/legalres.html This site contains links to a legislative update for grandparents and other relatives raising grandchildren, the challenge-response framework for understanding legal issues facing relative caregivers and legal information from the GRAND Resources Guide (some information on this site is specific to Wisconsin). http://www.gu.org/projg&olegal.htm On this site, Generations United provides information about legal options for grandparents raising grandchildren and other relative caregivers. National Satellite Videoconferences: The websites from each of the two videoconferences listed below include information related to legal issues facing grandparents raising grandchildren. See the sections entitled, Broadcast Questions and Answers. Grandparents Raising Grandchildren: Implications for Professionals and Agencies (1999) http://www.uwex.edu/ces/gprg/gprg.html Grandparents Raising Grandchildren: Legal and Policy Issues (2001) http://www.uwex.edu/grg/
State Specific Resources: Each state has different laws. The American Bar
Association has a website (abanet.org) that can be used to access their lawyer referral program in the United States (by clicking on the state). Another source of information on state specific laws would be a university law library. A reference librarian in a law library may be able to help you locate information on laws in your state. Most states have a state law library.
For information on visitation, custody and adoption or a copy of the law in your state, contact: Grandparents United for Children’s Rights, Inc. Ethel Dunn, Executive Director 137 Larkin St., Madison, WI 53705-5115 Phone and Fax: 608-238-8751 e-mail: sedun@inxpress.net For New York see: http://www.brookdale.org/gpc/help_gpc.html For Illinois see: Tips for Grandparents who are Raising Grandchildren in Illinois: Legal Assistance This fact sheet contains information about obtaining free legal advice, custody, guardianship, visitation rights, and eligibility for public benefits. It also contains information about the locations of Prairie State Legal Services. Ordering Information:
Illinois Department on Aging, 421 East Capitol Ave., Suite 100, Springfield, IL 62701-1789 1-800-252-8966 (Illinois only); (217)-785-3356 (outside of Illinois) FAX: (217)-785-4477 E-mail: ilsenior@age084rd.state.il.us For Wisconsin see: Grandparents/Relatives Raising And Nurturing Dependent Children Resource Guide (GRAND) See: http://www/uwex.edu/ces/flp/grandparent/grand.pdf
Acknowledgements: Legal Questions Ana Beltran, Project Director, Generations United. Information originally published in the Fall 2000 issue of “Together,” Generations United’s quarterly newsletter Melinda Perez-Porter, Program Associate, The Brookdale Foundation Group http://www.uwex.edu/ces/gprg/gprg.html Megan L. Dolbin, Graduate Assistant, Purdue Extension Dena B. Targ, Extension Specialist, Human Development, Purdue Extension Mary Brintnall-Peterson, Program Specialist in Aging, University of WisconsinExtension