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Forms of Grandparent Custody and Kinship Care

Relevant Terms Differ From State to State

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Grandparents may have legal custody or guardianship of their grandchildren.

Parenting grandparents can formalize the arrangement in several different ways.

Photo © MECKY / Getty

Parenting grandparents are created in a number of ways. Some just help out with the grandkids, taking more and more responsibility until one day they realize that they are raising their grandchildren. Other grandparents 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 all the variations thereof, grandparents will need to formalize their status in order to care for their grandchildren properly.

Grandparent custody comes in several different forms. The legal terms for these forms differ from state to state, but generally parenting grandparents have one of the following types of legal relationship with their grandchildren. The options are listed from least to most formal.

Physical Custody With Power of Attorney

When a grandparent is responsible for a grandchild's physical well-being and day-to-day care, the grandparent is said to have physical custody. This situation usually occurs when a parent or guardian asks that a grandparent take care of a child on a temporary basis. In such a case the grandparent should get a power of attorney (POA) that allows the grandparent to take care of the grandchild's medical and educational needs. Often this is as simple as getting the parent to sign a notarized form and submitting the form to juvenile court. The POA remains effective until the child is no longer a minor unless the parent files to revoke the POA, which a parent can do 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 provision for the possibility that a parent's whereabouts may be unknown by allowing grandparents to file an affidavit to that effect.

Grandparents as Foster Parents

If the state has removed a grandchild from a parent's custody, a grandparent may be offered the opportunity to serve as a foster parent in an arrangement sometimes known as kinship care. In such cases, the grandparent has physical custody, but the state retains legal custody. The grandparent may take care of the child without much oversight or assistance from the state, sometimes called informal kinship care, or the grandparent may go through the training and certification to become an official foster parent. In such a case, the grandparent will be paid as other foster parents are and will also be subject to visits and evaluations from Child Protective Services personnel.

Studies have shown that children are more likely to thrive and placements 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 when children are taken into state custody. Called Fostering Connections to Success and Increasing Adoptions Act, the act is aimed at connecting children in need of foster care with willing relative caregivers and providing support to make those fostering situations successful. The act also provides incentives for relatives to adopt the children they foster.

Legal Custody

A grandparent who wants more control over the grandchild can go to court and ask for legal custody, which is established through court order. It is possible for parents to regain legal custody, although they will have to petition the court. In most cases, parents have visitation rights even though grandparents have legal custody.

Guardianship

Of all the forms of grandparent custody, the term guardian probably has the widest variation in meaning. In some states guardianship is just the term used for legal custody. In other states, guardians have additional rights, including the right to name someone else to care for a grandchild in the event that the grandparent is unable to carry out those duties. Generally, a parent retains visitation rights while a child is under guardianship.

Adoption

The most permanent arrangement that can be made between a parenting grandparent and the grandchild is adoption. Adoption is permanent and ends parental rights. It also ends any foster care payments that the child may be receiving; however, a grandparent who adopts a grandchild may be eligible for an adoption subsidy and/or an adoption tax credit. The grandchild may remain eligible for medical care from the state even after adoption.

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