GRANDPARENTS CARING FOR GRANDCHILDREN:
HOW TO GET LEGAL CUSTODY

There are many reasons why a grandparent may need to care for a grandchild for an extended period of time. Obtaining a court order placing the child in the grandparent’s custody provides legal stability for the child, gives the grandparent the ability to obtain medical care for the child, gives the grandparent the right to enroll the child in school, prevents the parent from removing the child from the grandparent’s custody without going back to court and gives the grandparent the right to apply for state and federal benefits on behalf of the child. There are four methods by which a grandparent usually receives legal custody of a grandchild. Some of the options are also available to other relatives of the child, and some are available to adults who are not related to the child.

TEMPORARY RELATIVE CUSTODY
A grandparent with whom the child lives or who has the notarized consent of the child’s parents may petition the circuit court for temporary relative custody of a grandchild. This proceeding may be considered when the parent is unable to care for the child due to drug or alcohol abuse, incarceration, financial instability, mental health issues, responsibilities related to work or the military. At the hearing the judge will decide whether the grandparent should care for the child. The court will also consider the objections of the child’s parents. If it is in the child’s best interest and if the parents do not object, the court will award custody to the grandparent. If the child’s parents object to the award of custody, the court must find that the child has been abused, neglected or abandoned by the parents before granting temporary relative custody to the grandparent. The judge may grant the parents visitation rights if it is in the child’s best interest to do so. The judge may also order the parents to pay child support to the grandparent. One or both parents may petition the court at any time to terminate the order. The judge may terminate the order if (s)he finds that the parent is a fit parent or if the parents and the custodian(s) consent to the termination of the order. This option is also available to an adult aunt, uncle, sibling or first cousin who wants to have custody of a minor child.

GUARDIANSHIP
Another alternative for a grandparent or grandparents seeking custody of their grandchildren is guardianship. The grandparents file a petition for guardianship, usually with the consent of the parents. A person who has been convicted of a felony is not permitted to become a guardian. Additionally, persons who have been found to have committed acts of child abuse, neglect or abandonment are not eligible to become guardians. The guardian may be required to file annual reports and attend a class about the duties of a guardian unless the judge waives these requirements. The guardianship is valid until it is dissolved by the court. The parents may petition the court for dissolution of the guardianship and request that the children be returned to their custody. This option is available to any adult relative or an adult not related to the child whom the court finds is legally qualified to serve as the child’s guardian.

DEPENDENCY
When a grandparent believes that his or her grandchild is being abused, neglected or abandoned, or is likely to be abused, neglected or abandoned due to the child’s living conditions, (s)he can file a dependency action. Though this legal option may be filed in court by a grandparent, the Department of Children and Families (Department) usually files petitions for dependency. Once a petition is filed, the court will determine whether a child has been abused or neglected and whether the parents need to complete certain tasks to regain custody of the child. During the dependency process the child may be placed with the parents, grandparents, other relatives, persons not related to the child or in foster care. If the judge makes a finding that the child has been abused, (s)he will order the parents to complete a case plan, a document in which the Department recites the problems that led to the family’s entry into the juvenile court system. The case plan also states what tasks the parents must complete to regain custody of the child. If the parents do not complete the tasks within twelve months, the Department may file a petition to terminate the parents’ parental rights. If the parents’ rights are terminated, and the parents appeal the decision to a higher court, the appeal process may last for several months. If the higher court agrees that the parents’ rights should have been terminated, the child will then be available for adoption. Grandparents, other relatives, foster parents or any person who is legally eligible may adopt the child.

A dependency action may be started very quickly by a call to the abuse registry to report that a child is being abused or neglected. However, there are no guarantees that the Department will agree that the child has been abused or neglected. If the Department’s counselor feels that the child should be removed from the parents’ custody, the Department may find that the grandparent is not suitable for placement. The Department may refuse to place a child with a grandparent due to a grandparent’s criminal history, record with the Department or the condition of the grandparent’s home. There are dozens of other reasons why a grandparent may not be considered for custody. If the Department refuses to place a child with a grandparent, the grandparent has the option of requesting a hearing before the judge to determine whether it is in the child’s best interest to be placed with the grandparent. A dependency action may last for several months, and the persons involved in the action may be required to go to court several times.

ADOPTION
A grandparent may adopt a grandchild if the parents’ parental rights are terminated in a dependency proceeding, if the child’s parents are deceased or if the parents consent. The adoption of a child is permanent. The child’s biological parents no longer have any legal rights or responsibilities where the child is concerned. A court order is required. The adoptive parents may allow visitation between the child and the biological parents unless there is a court order prohibiting visitation. The biological parents are not required to pay child support to the adoptive parents, though they may be required to pay past due child support that was owed before the child was adopted. If the parents consent to the adoption or if the parents are deceased, this procedure can be completed in a few months. Grandparents, other relatives and persons who are not related to the child may be considered as prospective adoptive parents.

LEGALESE
This article is a brief overview of the legal options available to grandparents who are caring for their grandchildren. This article is not a substitute for legal advice obtained after consulting with an attorney.

Connie Renee Clay
Law Office of Connie Renee Clay, P. A.

 

Copyright 2001 Women's Digest, Inc. All Rights Reserved.

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