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Grandfamilies: Legal Issues
“Without legal custody, I can’t enroll my grandchild in school.”  “I can’t consent to my nephew’s physical, since I’m not his guardian.”

Grandparents and other relatives raising grandchildren often face challenges like these because they lack a legal relationship with the child in their care. To obtain a legal relationship to the children, caregivers face different concerns than non-related caregivers raising children:
  • To get awarded legal custody, guardianship or adoption of a child, a relative caregiver must prove that the parent is unfit. This is a significant hurdle that can threaten family dynamics.
  • A grandmother may not want to sue her daughter for adoption causing the birth mother to become the child’s “sister” and the grandmother to become the child’s “mom.”
  • Some cultures do not believe in adoption, but rather have a long tradition of caring for extended families.
  • Grandfamilies often lack access to affordable legal assistance.
Some states are creating legal relationship options that address these concerns. Open adoptions, standby guardianships, and de facto custody are a few innovative legal creations.

Laws and Programs Responding to the these Challenges

Related Foster Care
In order to become a related foster parent, the child must be removed from the birth parent’s home for abuse or neglect and then placed with a relative. Sometimes the state places the child with the relative and then completely steps out of the picture or provides very little supervision or funding. In other instances, the state may decide to obtain legal custody of the child and license the relative to care for the child.

Although licensed relative foster parents typically receive monthly financial assistance, some relatives do not want to become licensed. They may not want to be subject to oversight by a court and government agency. They could face the possibility that the child could be removed at any time and placed elsewhere. Related foster care is not a viable option for most grandparents and other relatives raising grandchildren.

Legal Relationship Options
Below, find a summary of legal relationship options that can apply to grandfamilies.It is important to note that because this area of the law is created at the state-level, how these options are defined and which ones are available can vary significantly by state. For information about which laws are available in your state visit the Grandfamilies State Law and Policy Resource Center.
  • Adoption - One of the most critical differences between adoption and other options is that it severs all of the biological parents’ rights and responsibilities. The relative caregiver becomes the parent in the eyes of the law. This fact makes access to services on behalf of the child much easier. It also means that the biological parents cannot simply reappear one day and go to court to reclaim parental rights and responsibilities.
  • Open or Cooperative Adoption - About one-third of the states have this option available. As part of an adoption, the relative caregiver, birth parents, and child develop an agreement for post-adoption contact with the birth parents. In some states, siblings may also receive contact privileges through the agreement. If a party breaches the agreement’s terms, courts can order remedies to enforce it. Invalidation of the adoption, however, is never a possible remedy.
  • Guardianship - The most significant distinction between adoption and guardianship is that guardianship does not sever the biological parents’ rights and responsibilities. Parents typically retain the rights to visit the child and must consent to adoption and/or name change. They also keep the obligation to financially support the child. For caregivers, the guardianship designation allows them to access to services on behalf of the child that otherwise might prove impossible. Unlike adoption, the parents can go back to court and ask for the guardianship to be terminated. Some states offer subsidized guardianship which includes a monthly payment to the caregiver to cover costs of raising the child.
  • Standby Guardianship - This option exists in over a third of the states. It allows a terminally ill parent to name a “standby guardian” to take over the day to day care of a child in the event of a triggering event, such as a parent becoming incapacitated, without the parent’s rights being terminated. These laws were originally designed in response to the AIDS crisis.
  • Legal Custody - Legal custody is similar to guardianship, but is usually granted by a different court with varying procedures. The status of “guardian” may give access to more services and rights than “legal custodian.” Consider, for example, how many times you read or hear the phrase “parent or guardian” without any mention of “legal custodian.”
  • De Facto Custody - Because of difficulties with bringing legal custody cases and proving that parents are unfit, some states have enacted innovative laws that may help relative caregivers. These laws essentially provide that if a relative has been raising a child for a significant period of time, the first step in proving his case is met. Then, the relative can go on to prove that he or she should be awarded legal custody, because it is in the child’s best interests. Kentucky was a pioneer in this area when it passed the nation’s first de facto custody law in 1998.
Consent and Power of Attorney Laws
In some states, relative caregivers who do not want or have a legal relationship to the children in their care have laws that make it possible to access health care and educational services on behalf of the children. About a third of the states have educational consent laws or some form of open enrollment law, which effectively allow children being raised by relatives to attend public school free of charge. More states, about half, have some form of medical consent law.

Another option for those caregivers without a legal relationship may be a power of attorney. Parents execute a form or handwritten document that states what type of authority they are conferring to the caregiver. Some states allow parents to use power of attorney to confer school- related and medical decision-making authority. Like the consent laws, these laws do not require going to court. Parental signatures are necessary, as they are with many of the consent laws. Also, like consent laws, these documents can be easily revoked by the parents. 

Legal Assistance
Once a decision is made that a legal relationship is needed or wanted, finding an affordable lawyer can be difficult, if not impossible. There are some no- and low-cost alternatives available. Area Agencies on Aging, legal aid clinics, local law schools, and bar associations may provide legal assistance. Grandfamilies may be eligible to access referral services through AARP Legal Services Network and local programs, including support groups.

Kinship Navigator Programs
Kinship navigator programs provide information, referral, and follow-up services to grandparents and other relatives raising children about the benefits and services that they or the children need. Navigators help relatives’ access programs, including legal services. A list of known navigators can be found here.

If you need additional information and support, visit the Grandfamilies State Law and Policy Resource Center or connect with support groups in your area.

Illinois’ Extended Family Support Program
The Illinois Department of Children and Family Services has an innovative legal assistance program for grandfamilies, known as the “Extended Family Support Program.” This program facilitates and funds legal guardianship for grandfamilies outside the foster care system. A case manager assists the family in getting private guardianship. The Department will pay for the filing fees, notification fees, and go with them to court. The program also helps with clothing vouchers, beds, etc. To qualify, a relative must have the child in their home for a minimum of 2 weeks, and there cannot be an open child welfare case or investigation.

If you need additional information and support, visit the Grandfamilies State Law and Policy Resource Center or connect with support groups in your area.

Additional Resources
Grandfamilies State Law and Policy Resource Center
Grand Resources: A Grandparent’s and Other Relative’s Guide to Raising Children with Disabilities
State Educational and Health Care Consent Laws: Policy Brief and Summary
Grandparents and Other Relatives Raising Children: The Second Intergenerational Action Agenda (PDF)
Child Welfare Information Gateway
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