biggest concern is that they are going to lose their grandchild.
Some of them are already in a court battle with the parents...and
they're just looking for help. They don't even know where to begin."
--Georgia Mackley, Idaho
"This is always a balancing act for a lawyer. I ask a lot of questions, and I try to do the best I can to fit their situation into a statute, but many times it's very difficult."
--John Prior, attorney
Defense Fund, a nonprofit Washington, D.C. group, says the
majority of grandparents raising grandchildren do so without any
legal authority. They just end up with the kids and try to make
it work as best they can. This can be troublesome, since daily
decisions that involve minor children almost always require some
sort of legal paperwork. What most grandparents seek in a legal
solution is stability for the grandchildren. There are several
ways to obtain legal rights for minor children in your care. Every
situation is different, but we'll list them from "least formal"
to "most formal"
- Power of Attorney: This is a document that gives an
adult some limited legal rights on behalf of another, absent
adult. People who are going to jail often sign a Power of Attorney
form to allow a grandparent limited, temporary decision-making
power for children while the parent is incarcerated. But it
is not actual legal custody, is usually only good for a few
months, and may be rescinded at any time.
- Guardianship: Grandparents must go to court to get
guardianship of children. It is also a temporary situation,
because the parents can go back to court at any time and petition
for the guardianship to be "dissolved" and get the children
back. This option is often chosen when the parents have been
involved in drugs, crime, or other types of instability, but
might be able to improve their situations enough to parent full-time
again. Grandparents can set stipulations for this, such as having
adequate housing and steady employment for 6 months or more;
enrolling in parenting classes and attending their minor children's
therapy sessions. Guardianship also requires the guardian(s)
to file an annual written report with the court about the child's
status and progress, and the guardian's finances.
- Foster Care: Grandparents who report dangerous living
situations to local authorities find themselves mired in a more
complex situation. They've not only "blown the whistle" on their
grown children, but when social service agencies intervene,
the grandkids may become wards of the state. At that point,
even the best-intentioned grandparents or other relatives don't
necessarily have "first rights" to care for the children unless
they are willing to go through the rigorous process to become
a foster home -- something most grandparents are unwilling to
- De Facto Custody: This is a very new designation, created
in only a few states but being considered in others. It allows
grandparents (or any other adult) caring for a child to be given
equal legal standing in custody disputes with the child's parents,
if the caregiver has been the primary physical and financial
supporter of the child for a certain time period (depending
upon the age of the child).
The "de facto custodian" or "kinship
caregiver" status is a controversial one, but is a major milestone
for grandparents who care for children for long time periods
before the birth parents return to claim them. De facto custody
laws have been enacted in Idaho, Indiana, Kentucky, Minnesota,
and New York.
- Adoption: This requires that a judge terminate the
birth parents' parental rights and assign these rights to the
grandparent. It is the most difficult type of custody to obtain,
but it does have advantages. For instance, adopted children
of retirees can receive Social Security benefits that do not
impact the retiree's own benefits, and are calculated based
on the grandparent's benefits, not the child's parents. In addition,
better health insurance might be available through the grandparents.
And finally, this is the only sure way to prevent a birth parent
from reclaiming their child. It is a more expensive process
and can lead to acrimony between the birth parents and the grandparents.
The important thing is to talk over your situation with a lawyer
as soon as you can.
"It depends on your finances of course,
and Legal Aid is an option for some people," says grandfather
Jerry Batie, "But some parents say they'll do things and then
don't follow through, so you should have an attorney involved
in there somewhere."
Batie's wife Jacqui agrees. "I'd have to
say that a majority of our problems have arisen from dealing
with the parents rather than the child. The children are the
victims in these situations."