grandparents r a i s i n g - college of family and … r a i s i n g grandchildren legal issues in...

Consent LawsSome states have what are called “consent laws,”which allow your grandchildren’s parent to sign a formgiving you the right to enroll the children in school andto seek medical care for them without going to court.Your grandchildren’s school or pediatrician’s officemay have a copy of the consent form.

Consent forms do not give you legal custody of yourgrandchildren. If you and the children’s parents everdisagree about their care, the parents are still legallyresponsible for making the decisions.

Legal Custody In order to have legal responsibility for your grand-children, you need to get some type of legal custody.Legal custody gives you more rights in relation to yourgrandchildren’s care. The courts will make custodyand visitation decisions based on what they think arethe best interests of the children.

Reaching an Agreement on CustodyAny type of custody is simpler if parents and grand-parents agree. No matter what type of custody the

As a grandparent raising your grandchildren,you might not have imagined being involved withthe legal system. But if your grandchildren live with you for a longtime, you may eventually need legal support and advice to provide the bestcare for them. It’s important for you to understand laws affecting grandpar-ents raising their grandchildren. The following information is a briefintroduction to the legal system as it applies to grandparents caring for theirgrandchildren. This fact sheet is NOT intended to substitute for actual legaladvice. If any of these legal issues affect you, your first step is to seek advicefrom a qualified attorney.

Communication Is KeyIf your grandchildren’s parents are still involved in their lives, it’s importantto communicate about legal issues that affect their children. As a grandpar-ent raising your grandchildren, you need to be able to register yourgrandchildren 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 onhow to handle these issues. Remember that what’s best for the children is most important!

GrandparentsRaising

GrandchildrenLegal Issues in Caring for Your Grandchildren

grandparents are seeking, family conflictcan be reduced or eliminated if parents andgrandparents sort out custody issuestogether. Custody is easy to decide in somecases, but sometimes parents and grand-parents have trouble coming to anagreement. Keep in mind that what’s bestfor the children should guide all of yourdiscussions and decisions.

If you want to work things out together, butare having a hard time agreeing on what’sbest for the children, you might considerone of the legal strategies.

n Negotiation: In negotiation, thelawyers take the lead in working out acustody plan. You and your lawyer sitdown with the parents and theirlawyers to work out a custody plan.

n Mediation: After you talk with yourlawyer, you and the parents can sitdown together, with or without lawyerspresent, with a person trained to helppeople work out disagreements.

Talk with a lawyer about how to get startedwith either of these strategies. Rememberto consult your lawyer before you sign anyagreements.

Types of Legal CustodyIn most states, there are three ways toobtain legal custody.

n Custody Order: In most states, a cus-tody order from a judge is the mostcommon way to get legal custody ofyour grandchildren. When you get acustody order, you are responsible forthe child’s day-to-day care, includingseeking medical treatment andenrolling them in school. With a cus-tody order, the children’s parentscontinue to have a legal relationshipwith the children. The parents have theright to visitation (unless a judgedenies or limits the visits), and couldrequest custody again some day.

Many families like custody ordersbecause they are relatively easy to getand still allow the parents to play a legalrole in the children’s lives. A custodyorder may be a good choice if there is achance that the parents will take thechild back. If there is a problem with aparent, ask your lawyer to make surecourt records state why the parentscould not care for your grandchild.

n Legal Guardianship: With legalguardianship, similar to a custodyorder, you accept day-to-day responsi-bility for the children but the parentsretain some rights. The main differ-ence is that legal guardianship is

Legal Issues in Caring for Your Grandchildren

Grandparents Raising Grandchildren, Cooperative Extension, The University of Georgia

usually granted in probate court (thesame court that handles wills aftersomeone dies). Probate court has dif-ferent rules and standards thansuperior court, where custody ordersare usually decided. If you are declaredyour grandchildren’s legal guardian,you may have to return to court peri-odically to report on your care of thechildren. Your lawyer can tell you moreabout this requirement.

If you are trying to decide between a cus-tody order and legal guardianship, considerasking your lawyer the following questions.The answers to these questions vary fromstate to state and sometimes even acrosscounties. Considering these questions canhelp you decide which type of custody isbetter for your family.

H Which type of custody would costmore, take longer, and require returntrips to court?

H How would each choice affect cashbenefits (such as TANF or food

stamps) or health insurance coveragefor your grandchildren?

H How would each choice affect theparents’ ability to visit the children?

H How would each choice affect theparents’ ability to ask that the chil-dren return to their custody?

n Adoption: Adoption is a permanentarrangement. If you adopt your grand-children, you become their legal parentin every way, and the legal relationshipbetween the grandchildren and theirparents ends. If you adopt, the parentscannot request custody later. It maysound strange to adopt your owngrandchildren, but sometimes it may bethe best choice. Adoption is the onlylegal way to ensure that you will raiseyour grandchildren permanently. Themajor reason to choose adoption is togive your grandchildren the safety andsecurity of knowing that you will carefor them permanently.

Adoption is a very serious step thatrequires careful thought, and it’s notthe best choice for all families. Ofcourse, adoption is simpler if thechild’s parents agree to it. Parents whoagree can voluntarily give up theirparental rights so the grandparents canadopt.

If the parents don’t agree that adoptionis the best choice for the children, dis-cussing adoption may cause conflictbetween parents and grandparents. Ifthis happens, discuss the issue calmlyand rationally. Give clear reasons whyadoption is best for the children. Talkabout whether the parents will still



If you want to work things outtogether, but are

having a hardtime agreeing

on what’s best for the children,

you might consider

legal strategies.

visit the children. Above all, protectthe children from being caught in themiddle of the conflict. Help themunderstand that you love them andwant what’s best for them.

Child SupportIf you have legal custody or guardianshipof your grandchildren but have notadopted them, the court may require thechildren’s parents to pay child support toyou. Child support can help make raisingyour grandchildren more affordable.Receiving child support also sends themessage that the children’s parents careenough to help with the costs of raisingthem. Parents who pay child support tendto visit their children more often and staymore involved in the children’s lives.

Child support should be negotiated at thetime of custody or legal guardianshipagreements. Each state has guidelines tohelp parents and grandparents agree on afair amount. If the parents were not mar-ried when the children were born, you mayhave to go through a legal process to estab-lish the children’s paternity before supportcan be collected from the father. Keep inmind that if you legally adopt your grand-children, you give up your right to receivechild support from the parents.

Emergency ProtectionIf your grandchildren’s safety is in jeop-ardy, especially from an abusive parent,there are laws that can protect you. Onceyou have any form of legal custody, a judgemay order supervised visitation, so the par-ent can visit the children only in a safe

setting with someone watching. If the par-ent should not be visiting the child at all, ajudge can issue a legal protection order tokeep the parent away from you and yourgrandchildren.

It is your responsibility to make sure pro-tection orders are not violated. If you have aprotection order, call the police any time theparent tries to violate it. Remember that theprotection order was issued for the safetyof your grandchildren. Don’t feel guiltyabout insisting that the parents follow it.

Choosing a LawyerPaying a lawyer might seem like an unnec-essary expense. But if you’re trying tomake decisions about custody and childsupport, a good lawyer is crucially impor-tant. An experienced lawyer can advise youabout the consequences of different typesof legal custody and help you decide whatwould be best for your family. Your lawyercan help you work out agreements with theparents and will represent you in courtwhen you seek custody.

Shop around for a lawyer who meets yourneeds. Explain your family situation, and



Child supportshould be

negotiated at thetime of custody orlegal guardianshipagreements. Each

state has guidelinesto help parents andgrandparents agreeon a fair amount.

tell the lawyer about the kinds of decisionsyou need to make. Ask questions about thelawyer’s training and experience. Choose alawyer who has worked with cases similarto yours, and who can effectively representthe interests of you and your grandchil-dren. Look for someone who listenscarefully and shows you respect. It’simportant to have at least one meeting witha prospective lawyer before you decidewhom to hire. Most lawyers do not chargefor a first visit.

If You Can’t Afford to PayRemember that paying a lawyer to repre-sent you is a good investment. But if youneed a lawyer and can’t afford to pay one,you still may be able to get good legal help.Try contacting some of the following.

n Legal Services or Legal Aid. Thesegovernment-sponsored law offices helplow-income people with common legalproblems. Look in the governmentpages of your phone book for the LegalServices office near you. Call to set upan appointment before you go.

n Law School Clinics. If there’s a lawschool near you, see if they have aclinic that provides low-cost legal help.If you go to a law school clinic, a lawstudent will work on your case, super-vised by an experienced lawyer. Tofind out what programs exist, call thelaw school dean’s office.

n A Pro Bono Lawyer. Some privatelawyers will work on a case for free,especially if the case will help morethan one family. If you’re trying to

change an unfair law or challenge anunfair state policy, you might find aninterested pro bono lawyer. Call thestate bar association and ask for ideas.

Lawyers have an ethical duty to dotheir best in every case, whether or notthe client is paying. If you feel you arenot getting good service, talk to yourlawyer or your lawyer’s supervisorabout the problem.

In SummaryAs a grandparent raising your grandchil-dren, you may need to help make decisionsabout custody and child support for yourgrandchildren. There are several differentoptions. Work with your grandchildren’sparents to decide what will work, and gethelp from a good lawyer. Above all,remember that your grandchildren’s needsshould come first. Choose the arrangementthat’s best for them.



ReferencesAARP. (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 totheir 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 AdolescentPsychiatry Clinics of North America, 7, 409-422.



The University of Georgia and Ft. Valley State University, the U.S. Department of Agriculture andcounties of the state cooperating. Cooperative Extension, the University of Georgia College ofAgricultural and Environmental Sciences, offers educational programs, assistance and materialsto all people without regard to race, color, national origin, age, gender or disability.

An EqUAl OppOrTUniTy EmplOyEr/AFFirmATiVE ACTiOn OrGAnizATiOnCOmmiTTED TO A DiVErSE WOrk FOrCE

publication # CHFD-E 59-7 revised July, 2009

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.

grandparents r a i s i n g - college of family and … r a i s i n g grandchildren legal issues in...

Documents