Grandparents' Rights and Custody Options
A Guide to Legal Rights and Support ServicesIn This Article
As a grandparent raising a grandchild, your first priority is the emotional health of the young person under your care. That said, there are many practical issues to consider—including legal and financial needs. Learn what assistance is available in the U.S. and how to get help, so you can focus on what’s most important: raising a healthy, happy grandchild.
When you were making your decision to raise your grandchild or grandchildren, you probably didn’t think too much about the legal implications. But if your grandchildren live with you for any length of time, it’s important that you understand the laws that affect 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 doesn’t mean you have legal rights to make decisions for that child. Unless you’ve taken steps to secure a legal caregiving relationship with your grandchildren, you may have trouble enrolling the children in school, authorizing medical treatment, and getting financial assistance and health insurance. It’s important to discuss the legal issues with your grandchildren’s parents, if at all possible, and try to agree on how to move forward.
What type of legal issues will affect my grandchild and me?
Unfortunately, there is no simple answer to this question. It will depend on the needs of your family. Especially in options such as legal custody and guardianship, the parameters can vary from state to state. It's essential to seek some legal help to ensure you are going 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 him or her the proper care? This may also mean getting Child Protective Services or the police involved if there is a safety risk.
- Permanency. If the stability and safety of the 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 more permanent responsibility and decision making for the grandchildren.
- Visitation. Which choice gives the parents ability to visit or request custody of their child? Are the parents interested in visiting? Is that best for the children?
- Cost and time. Which choice requires more time in court or is more involved?
- Finances and health. Make sure you understand how the choice would affect a grandchild's health insurance coverage or cash benefits.
If you have physical custody, without a court order, you have no legal rights to make decisions for your grandchildren about health care and school enrollment. You also can’t make legal arrangements for someone else to take care of your grandkids should something happen to you.
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 parent or 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 him or her 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 law, 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 Caregivers Get Medical Consent?
The parent or legal caregiver giving the authorization may complete a medical consent form, available from many local organizations, or simply write a statement. The form or statement must contain the following:
- identity of the caregiver
- the names and dates of birth of the children at issue
- a description of the medical treatments for which authorization is given
- a statement that there are no court orders in effect which would prohibit the authorization
- the signatures of the parent, legal guardian, or custodian, in the presence of two witnesses. (The caregiver receiving the consent cannot be one of the witnesses signing.)
Source: SeniorLAW Center
When a child has been removed from his or her parent’s home by the state, grandparents have another temporary custody option: kinship foster care.
Here are some important issues to consider in 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 to be permanently placed with you, the final decision is with the state agency that placed the child.
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, the state agency holds you to the same standards as other foster parents, which can mean trainings, 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.
For more permanent and secure custody arrangements that give you broader legal protections, grandparents raising grandkids have three options:
- legal custody
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 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 a grandchild your health insurance plan
- designate a standby guardian who can take care of your grandchild if and when you’re not able to
Adoption is a permanent option where the grandparent receives 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.”
Adoption can give a solid sense of permanency and stability for the 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.
|Custody Options for Grandparents Raising Grandchildren|
Best Choice If...
Grandparent and parent are in agreement
Grandparents desire long-term commitment and want authority to make decisions
Grandparents want to ensure that you will raise your grandkids permanently
As every parent knows, raising children can be expensive. Grandparents face additional challenges. You may be on a fixed income, no longer working. If you weren't expecting it, you may not be prepared for the financial costs of suddenly taking on children.
If you’re struggling to make ends meet, you may want to look into federal and state financial assistance programs. There may also be financial resources and services available in your community to help with food, health care, and other expenses.
Temporary Assistance to Needy Families (TANF)
This program offers cash assistance for low-income families. There are different rules for receiving cash assistance, but eligibility is determined by residency, income, and assets. You may qualify to receive benefits as a family, or your grandchildren can receive benefits under the child only grant. With the child only grant, your grandchildren may be able to receive benefits until they are 18 (or 19 if they are still in high school). Cash assistance is limited to a lifetime total of 48 months.
Supplemental Security Income (SSI)
This program pays monthly cash benefits to families with mentally or physically disabled children. To qualify, families need to have a limited income.
Kinship foster care and Subsidized guardianships
As previously mentioned, you can receive financial assistance by applying formally to be your grandchild’s foster parent. Of course, this option is only available if the child has already been removed by the state from the parent’s home.
Another option is subsidized guardianship (although it is not available in all states). Similar to kinship foster care, this option offers some payments from the state to help meet the basic needs of the children. However, this option also allows grandparents the legal responsibility associated with a guardianship.
Financial support from the parents
In some cases, parents and grandparents are able to share responsibilities. One or both parents may contribute financially. If the parents are involved, sit down and make a plan with them. It may be uncomfortable to discuss financial issues with your children, but you want to make sure that you provide the best care for the grandchildren without neglecting your own financial needs for retirement and beyond.
Even if grandparents have legal custody or guardianship, parents can be asked to pay a specific child support amount. Some parents prefer such a formalized arrangement.
Health insurance can be a headache for grandchildren. Even healthy children will most likely need several doctor visits for physicals and routine illnesses, and those bills can rapidly add up. The first thing to check is with your specific healthcare plan for provisions.
In many states, you may need to be the child's legal guardian in order to add them to your plan. If you are currently receiving Medicare, your options will be limited. Look into enrolling your child into Medicaid or check your state's Children's Health Insurance Program. Even if your income is above limits, you may be able to enroll just your grandchild.
- Medicaid – Medicaid provides healthcare coverage for qualified low-income children and adults. Medicaid is a federal program, but it is administered locally at the state level. Medicaid covers medical, dental, and mental health services. If your grandkids qualify for Temporary Assistance to Needy Families (TANF) or Supplemental Security Income (SSI), they automatically qualify for Medicaid. But you will still need to file an application for Medicaid coverage separately.
- Children’s Health Insurance Program (CHIP) – If you make too much money to qualify for Medicaid, but are having trouble affording private health insurance for your grandkids, you may qualify for CHIP. The requirements and level of assistance varies from state to state, but in most cases, CHIP covers check-ups, vaccinations, prescriptions, and hospital visits.
More help for grandparents
- Grandparents Raising Grandchildren: The Rewards and Challenges of Parenting the Second Time Around
- Caregiver Stress and Burnout: Tips for Recharging and Finding Balance
- Staying Healthy as You Age: How to Feel Young and Live Life to the Fullest
- Stress Relief in the Moment: Using Your Senses to Quickly Change Your Response to Stress
Resources and references
Legal issues for grandparents raising grandchildren
Grandparents Raising Grandchildren: Tips for Navigating the System – Find tips for finding financial, educational, and health care assistance.
Legal Issues in Caring for Your Grandchildren (PDF) – Guide to the legal issues you may face as a grandparent raising a grandchild. (University of Georgia Cooperative Extension)
Grandparenting: Financial and Legal Issues – Written for New York, this site nonetheless has detailed fact sheets on legal and financial issues, including examples of when to consider specific options such as guardianship or adoption. (NYC Caregiver)
State Factsheets for Grandparents or Other Relatives Raising Grandchildren – Kinship care state fact sheet for grandparents raising children. Provides information on state-specific policies, resources, and programs. (Children’s Defense Fund)
Grandfamilies.org – National database of laws and legislation affecting grandfamilies both inside and outside the foster care system for all 50 states. (The Grandfamilies State Law and Policy Resource Center)
Financial assistance for grandparents raising grandchildren
Accessing Resources in Your Community (PDF) – Learn about the government programs and community services that may be available to help you as you raise your grandchild. (University of Georgia Cooperative Extension)
Financial Assistance for Grandparents and Other Relatives Raising Children (PDF) – Provides an overview of some of the options for financial assistance, while at the same time acknowledging current limitations and options for policy change. (Children's Defense Fund)
Health insurance for grandparents raising grandchildren
Healthy Ties: The Grandparent’s and other Relative Caregiver’s Guide to Health Insurance for Children (PDF) – A look at health insurance coverage through Medicaid and CHIP enrollment for grandparents raising grandchildren. (Children’s Defense Fund)