Grandparents can become parents in a number of ways. Some just help out with their grandkids, taking more and more responsibility over time until one day they realize that they're effectively raising them. Others may transition into parents in a more sudden fashion — they may get an unexpected phone call, often from social services, telling them that their grandchildren need a place to live.
In both situations and in all their variations, grandparents may have to formalize their status to be able to care for their grandchildren properly.
Also taking custody in one way or another.
Grandparent custody comes in different forms, and the legal terms for these forms can differ from state to state. But parenting grandparents usually have one of the following legal relationships with their grandchildren.
Physical Custody With Power of Attorney
When grandchildren live with grandparents and grandparents are responsible for their physical well-being on a day-to-day basis, the grandparent has "physical custody." This situation usually occurs when a parent or guardian asks the grandparent to take care of the child on a temporary basis. This is usually done as an informal arrangement.
Grandparents should get a power of attorney, also called a POA, granting them the legal authority to address the child's medical and other needs, particularly in an emergency when the child's parents can't be reached. This can be as simple as having the parent to sign a notarized form and submitting it to the court.
The POA remains in effect until a date specified within it, or until the child is no longer a minor. In either case, the parent can file with the court to revoke the POA at any time.
Some states have medical consent forms and educational consent forms that may make an actual power of attorney unnecessary.
In addition, some states make provisions for the possibility that a parent's whereabouts may be unknown and allow grandparents to file affidavits to this effect so they can receive a POA or other consent.
Grandparents as Foster Parents
Grandparents may be offered the opportunity to serve as foster parents when the state removes children from their parents' care. This arrangement is sometimes known as kinship care. The grandparent has physical custody, but the state retains what's called "legal custody" — the right to make major decisions regarding the welfare of the child.
Grandparents may take care of the child without much oversight or assistance from the state, and this is sometimes called informal kinship care. In other states, grandparents may have to go through the training and certification required to officially become foster parents. Grandparents are then paid a stipend for care-giving just as other foster parents are. If they are official foster parents, grandparents are also subject to visits and evaluations from Child Protective Services personnel.
Studies have shown that children are more likely to thrive and foster placements are more likely to be permanent when children are placed with relatives.
A federal law passed in 2008 requires that social services locate and notify adult relatives whenever children are taken into state custody. Called the Fostering Connections to Success and Increasing Adoptions Act, the law aims to connect children in need of foster care with willing relative caregivers. It provides support to make those fostering situations successful. The act also provides incentives for relatives to adopt the children they foster.
Legal and Physical Custody
A grandparent who wants more control over the grandchild can go to court and ask for legal custody as well as physical custody, both being established through a court order. Even if there is a court order, parents can regain custody, but they'd have to petition the court. In most cases, parents have visitation rights even though the child's grandparents have custody.
The term "guardian" has the widest variation in meaning of all the forms of grandparent custody. Guardianship is the term used for legal custody in some states, while guardians in other states have additional rights, including the right to name someone else to care for a grandchild in the event the grandparent becomes unable to carry out those duties. Generally, a parent retains visitation rights while the child is under guardianship.
Adoption is the most permanent arrangement that can be made between a parenting grandparent and his or her grandchild. Adoption is permanent and ends parental rights. It also ends any foster care payments that the child may be receiving, but a grandparent who adopts a grandchild may be eligible for an adoption subsidy and an adoption tax credit or both. The grandchild may remain eligible for medical care from the state even after adoption.
Detailed information about grandparent custody is available from The Grandfamilies State Law and Resource Center, sponsored in part by the American Bar Association.
- Learn More: Why Grandparents Should Seek Legal Custody