If you’re a grandparent raising grandchildren, there are many practical issues to consider—including legal, financial, and caregiving support. Learn what help is available for parenting the second time around.
Legal issues for grandparents raising grandchildren
There are many reasons why you might choose to take on a full-time parenting role in your grandchild’s life. Death, divorce, illness, neglect, abuse, or legal troubles could all lead to a shift in familial duties. But when you made your decision to raise your grandchild or grandchildren, you probably didn’t think too much about the legal implications. However, if your grandchildren live with you for any length of time, it’s important that you understand the laws that can impact grandparents raising grandchildren.
For example, are you authorized to register your grandchild at school? Can you make medical decisions for them? Get them health insurance? Who is legally obligated to pay for clothes and other necessities for the children—and are there programs available to help?
Just because you’ve taken in your grandchild, it doesn’t mean you have legal rights to make decisions for that child. Unless you’ve taken steps to secure a legal caregiving relationship, you may have trouble enrolling your grandchildren in school, authorizing medical treatment, and getting financial assistance and health insurance. It’s important to discuss the legal issues with your grandchild’s parents, if possible, and try to agree on how to move forward.
The following information can help you navigate the legal considerations that come with taking custody of and caring for your grandchildren. Note that all of these legal solutions relate to laws within the United States, and policies will differ by country.
What type of legal issues will I face?
These will depend on the needs of your family, and—especially in areas such as legal custody and guardianship—the issues can vary according to where you live. It’s essential to seek some legal help to ensure you’re moving in the right direction for your family. Questions to consider include:
- Safety. Have the children been removed because the parents were unfit? Are you worried the parents might want the child back and not give them proper care? If there is a safety risk, it may mean getting Child Protective Services or the police involved.
- Permanency. If the stability and safety of your grandchildren are threatened, you may want to investigate legal protections to ensure they stay in a safe environment. In some cases, that may mean asking for permanent custody and the ability to make decisions for your grandchildren.
- Visitation. Are the parents interested in visiting? Is that best for the children? In that case, which caregiving options give the parents the ability to visit or request custody of their child?
- Cost and time. Which custody choices require more time in court or more legal expenses for you?
- Benefits and health. Make sure you understand how your custody choice could affect your grandchild’s health insurance coverage or benefits.
Establishing a legal custody or guardianship arrangement will give you the most legal rights. But if you’re hesitant to get the courts involved, there are several alternatives to consider. They can be especially helpful and simple when there is a cooperative relationship between the child’s parents and grandparents.
Power of attorney
If your grandchild’s parents are willing, they can create a power of attorney that gives you temporary authority to make specific decisions for their child. Once power of attorney is signed over, you have whatever legal rights are specified in the document. For example, you might be given legal authority to seek medical care for your grandchild or register them in school.
The power of attorney does not remove a parent’s legal rights, and the parent can revoke it at any time. You will want to check what provisions there are in your state for power of attorney.
Medical and educational consent laws
Some states also have consent laws that make it possible for grandparents to make medical and school decisions for their grandchildren without going to court.
Educational consent laws, or open enrollment laws, allow grandparents or other adults who are raising a child without legal custody to enroll that child in public school.
Medical consent laws allow a parent to authorize another adult to consent to medical, dental, and mental health care for their children and obtain access to health records.
How do grandparents get medical consent?
The parent giving the authorization may complete a medical consent form (such as the one in the Helpful Links section below) or simply write a statement. The form or statement must contain information such as the name of the grandparent (or other family caregiver), child’s name and date of birth, and insurance information. The form may need to be notarized as well, or completed in the presence of witnesses.
Kinship foster care
When a child has been removed from their parent’s home by the state, grandparents have another temporary custody option: kinship foster care.
In kinship foster care, you do not have legal custody of the grandchild. This means that although you can take care of your grandchild’s day-to-day needs, you can’t make any major decisions without first obtaining consent from the agency that acts for the state.
Kinship foster care is not permanent. It is considered temporary custody. The goal is for the child to be placed in a permanent home. While you may be working towards the child being permanently placed with you, the final decision is with the state agency.
Formal vs. informal kinship foster care
Kinship foster care arrangements can be formal or informal. In a formal kinship foster care arrangement, grandparents can receive the same payments that foster parents receive, which can be helpful in managing costs. However, to receive that financial assistance, you’ll need to be a fully licensed kin caregiver. A state agency will hold you to the same standards as other foster parents, which can mean training, home visits, and evaluations.
Some grandparents prefer informal arrangements for this reason. In informal arrangements, the state places the child with you and then steps out of the picture. You don’t have to worry about further interference or oversight. The trade-off is that you won’t receive monthly financial assistance.
If neither option seems ideal, you may want to check if your state has subsidized guardianships. Subsidized guardianships give grandparents more legal rights over the grandchildren in their care while also offering some payment.
Legal relationship options for grandparents
For more permanent and secure custody arrangements that give you broader legal protections, grandparents raising grandkids have three options:
- Legal custody
- Guardianship
- Adoption
All three options require that you go to court. You will probably want to hire an attorney to help you through the process. If you can’t afford an attorney or need help applying for legal custody, contact your local legal aid office or bar association.
Legal custody (custody order)
The most common way to establish a legal relationship with your grandchildren is by getting a custody order from a judge. Unless the parent has voluntarily given up parental rights, you will most likely have to prove that the parent is unfit. But some states have laws that make it easier for relatives who already have physical custody to obtain legal status based on the best interests of the child.
Legal custody may not be permanent. However, once legal custody is awarded, your grandchildren’s parents will have to go to court if they want to get their kids back. If they prove that circumstances have changed and they are now able to care for their children, the court may return legal custody to them.
Guardianship
Guardianship is similar to legal custody, in that it is a legal relationship between you and your grandchild that is ordered by a court. As in legal custody, grandparents accept the day-to-day caregiving responsibilities for the child, while parents retain some of their rights. The primary difference is that guardianship is usually handled in probate court.
In some states, guardianships are more permanent than legal custody—remaining in effect until the child is 18. Sometimes, guardians also have more authority, including the ability to:
- Make medical decisions on behalf of your grandchild.
- Add your grandchild to your health insurance plan.
- Designate a standby guardian who can take care of your grandchild if and when you’re not able to.
Adoption
Adoption is a permanent option where you, as the grandparent, receive all parental rights and responsibilities and the child’s biological parents no longer have any rights. Once the adoption is complete, you become your grandchild’s legal “parent.” However, some states allow for biological parents’ rights to be restored under certain conditions.
Adoption can give a solid sense of permanency and stability for your grandchild, especially if the parents are never expected to be in the right place to give their all to the child. Adoption doesn’t necessarily have to be adversarial. For example, sometimes families consider it if the birth parent is very young and not ready for the responsibilities of parenthood.
