Raising Grandkids: Legal Issues

En español | Grandparents and other relatives who care for children often face legal issues, whether it's dealing with custody or guardianship, or simply getting a child medical care. These are answers to some frequently asked questions.

See also: GrandFamilies Resources.

What are the options for a formal "legal relationship" with my grandchild?

Since laws regarding grandparent's rights vary from state to state, it is best to contact a family law attorney in your area who can tell you what's best for your situation. If you are the primary caregiver for your grandchild, it may be important to establish some kind of legal relationship. If you don't, the child's parent can take the child from you at any time. What's more, you may have trouble getting medical care for the child or enrolling him in school. In most cases, these are the three key options for a formal legal relationship with a child:

• Custody. This means you are responsible for supporting and providing care for the child. In certain states, a child's parents may still retain some of their rights — even if you have physical custody. A parent can voluntarily relinquish custody of a child to you through a written legal agreement, or it can be formally ordered by the court.
• Guardianship. This designation means that you have the duty to care for a child if he is taken away from his parent (or other legal guardian) by the courts. In some (but not all) states, when someone takes guardianship of a child, a parent loses all his rights. The terms "custody" and "guardianship" can be mean different in different states, so it is important to get the correct facts for where you live.
• Adoption. When you adopt a child, you have all the rights and responsibilities of a biological parent. The birth parents no longer have any rights.

Can I enroll a grandchild in school or get them medical care if I haven't established a legal relationship with the child?

Some states have education and/or medical "consent" laws, which allow caregivers to enroll a child in school or get medical care without having legal custody or guardianship. Medical care may include immunizations, mental health services, well-child check-ups and dental care. In the states with these consent laws, usually the caregiver signs an affidavit (a statement) saying they are caring for the child. In some states, the parent can sign a special form to give you permission to get services for your grandchildren. Check your state's GrandFacts sheets to find out if your state has medical/education consent laws.

Can I get financial help without a legal relationship with my grandchild?

Most public benefits for your grandchildren, such as cash assistance or free/low-cost medical care, do not require you to have custody or guardianship. Most benefits for children do not count the caregiver's income either. But some do, so be sure to talk with the local department of human services or Social Security office or your lawyer to learn about the rules in your state.

What if my grandchild is in "foster care"?

When a child is in foster care (or under the protection of a child welfare system), usually the state has legal custody of the child and caseworkers make all major decisions about him or her. Children in foster care may be placed with families, or in group homes or institutions. In an arrangement known as "kinship care," a child is placed with a relative or a close family friend. When a grandparent becomes a foster parent though kinship care, the grandparent is responsible for the day-to-day decisions and care for the child — though the state retains legal custody and pays for the child's care. Almost all states prefer to place children with a relative or "kin" when they can. If your grandchildren have already been in the legal custody of the state, or if they are being abused or neglected and the state is taking custody of them, you can look into becoming their foster parent and have them placed in your home.

What are guardianship subsidies and adoption subsidies?

• Guardianship subsidies are cash payments to help relatives raise children after they get legal guardianship. In most states, the child has to have been in the custody of the state (foster care). Only a few states also have guardianship subsidies for children who go straight from their parent's home to another relative's guardianship.
• Adoption subsidies are one-time or ongoing cash payments that may be available when a child with special needs who has been under the care of child welfare system is adopted. Each state has its own rules about what "special needs" means, which may include: physical, mental or learning disabilities, chronic illnesses, siblings groups, older children, racial/ethnic minorities or other situations.
  

What does it mean when a parent's rights are "terminated"?

A judge can decide that a parent has no right to care for or even visit with their child. Their parental rights are "terminated" or ended and they cannot get them back. Other family members may also be affected. For example, another family member may be denied the opportunity to visit with the child. Parent's rights are usually terminated permanently when a child is adopted.

What can I do if I think my grandchildren are in danger or being abused?

If you are concerned about abuse and neglect, call your state's Child Abuse Reporting  Number, which can be found at  www.childwelfare.gov and ask them to look at your grandchildren's care. There is also the Childhelp National Child Abuse Hotline, 1-800-4-A-CHILD you can call for help. If you feel your grandchild is in immediate danger of being harmed, you should call the police.

How can I get help with legal fees?

If you have trouble paying for legal advice, you may be able to find reduced or free legal help through local agencies or private law firms. See the legal section in Grand Families Resources for ideas for organizations that can help you find pro bono legal help, such as the American Bar Association.

How can I plan for a time when I can't care for my grandchildren?

Be sure to include your grandchildren in your will. If you are your grandchild's primary caregiver, some states will allow you to direct someone to take care of him if you become ill or die. Talk with a lawyer to get more information about laws in your state.

My grandchildren had been living with me, but now they're back with their parents, who won't let me see them. What can I do?

Sadly, there can be situations when a parent decides not to let a grandparent see a child anymore. If this happens to you, contact a professional mediator who is trained to help people work out such disagreements. Mediation often costs less that going to court, and can be easier on everyone. If that doesn't work, you'll need to get a Family Law lawyer who can tell you about the visitation laws in your state.

The system seems to make it harder for me to raise grandchildren — not easier. How can I help change things?

When you are raising grandchildren, you have to be an advocate for them as they grow up. Many grandparents also become advocates to change "the system" or the laws, policies and rules that effect "grand families."  You can educate your local officials and members of Congress about your challenges by writing letters, calling and visiting your representatives. To find out how you can join forces with other grandparent caregivers, contact local or state grandparent groups or coalitions, your local Area Agency on Aging, Generations United, Grandfamilies of America, the National Committee of Grandparents for Children’s Rights, the Children's Defense Fund or other national organizations that advocate for your rights.

Next: Grand Families Guide: Finances