munoz family"Their 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 KinCare Coalition

"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

Legal Options

The Children's 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"

  1. 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 But it is not actual legal custody, is usually only good for a few months, and may be rescinded at any time.
  2. 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.
  3. 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 do.
  4. 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.

  5. 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."