Gaining Legal Custody of Your Grandkids
Some grandparents must weigh the cost of saving their grandkids from troubled parents.
Articles within this series
- Overview
- A Word of Counsel for Single Grandparents
- Gaining Legal Custody of Your Grandkids
- Next Steps / Related Information
Tess* is 51 and a grandmother. But hers is not the typical grandparent-grandchild relationship. In fact, she and her husband Frank* have full legal custody of their granddaughter, Gina*, and are raising her as their child.
So, what prompted them to take the drastic steps necessary to gain custody of their grandchild?
Gina’s father is a drug addict. For the first three years of Gina’s life, Tess and Frank intervened when they could to protect Gina from their son’s erratic and dangerous lifestyle, but the situation just got worse. Fearing for the little girl’s life, they reluctantly took their son to court, where they spent most of their life savings fighting for custody of Gina.
“I spent $28,000 in court battling for Gina,” Tess says, “and she was worth every cent.”
The legal victory came with a price. The stress of the court battle led to health problems for Tess, plus the loss of her job.
“The money spent and [having] no job has been a huge financial strain,” she says. “I no longer have any retirement funds. I worry about short-term things like braces and long-term things like college and [Gina's] wedding. We worry that our health and patience will not hold up long enough to see her into womanhood.”
Tess and Frank are not alone. The phenomenon of grandparents raising their children’s children is on the rise. Between 1990 and 2000, U.S. census data shows the number of children in grandparent-headed households increased by 30 percent.
More than 3.9 million grandparents provide primary care for grandchildren under age 18. According to 1997 statistics, nearly 18 percent of those grandparents are younger than age 45, and more than 82 percent are younger than 65.
Discouraging Developments
“Grands raising grands,” as they often refer to themselves, confront serious financial, legal, educational and health hurdles that biological parents don’t face. Many grandparents must take on the caregiver role without a formal legal relationship, such as guardianship, legal custody or adoption.
But in the courts, things haven't gone well for caretaking grandparents.
Two years ago, the U.S. Supreme Court handed down a landmark decision leaving grandparents with fewer rights to visit their grandchildren if the children's parents should die or family relations break down.
Now, state courts and legislatures are following the high court's lead by placing less importance on grandparents' concerns. Previously, judges could order visits against a parent's wishes if they merely found it was in the child's best interest.
"Grands raising grands" face a host of obstacles, including:
- Difficulty enrolling children in school (in some states)
- Children who are ineligible for employer-provided health insurance
- Difficulty with medical-consent issues in some states
- The fear that birth parents may reclaim the children at any time
Legal Obstacles
State laws vary, but if you do choose to pursue legal custody of a grandchild, there are different ways to formalize your role:
- “Adoption” legally transforms the grandparent into the parent, with all a parent’s rights. However, that can also mean the loss of some types of financial assistance and the turmoil of a courtroom confrontation.
- “Guardianship” means that you are responsible the child’s care and custody, but it doesn’t sever the biological parents’ rights. It allows you access to services that require a legal relationship with the child.
- “Legal custody” is another option. You’ll need to find out the differences between legal custody and guardianship in your state.
Depending on your state, other scenarios include: open adoption, “de facto” custodianship, standby guardianship and subsidized guardianship. Beyond consulting an attorney, you can seek help at your local department of social services, foster-care agencies, or family service agencies.
In some cases, there are public health benefits available to help grandparents raising grandchildren. Some are available to both informal and legal caregivers who apply for the benefits on behalf of the children. These might include:
- Social Security Dependents benefits (SSI)
- Temporary Assistance to Needy Families (TANF)
- Medicaid
- Subsidized guardianship, foster care funds or kinship care subsidies
- Low-income children’s health insurance programs
- Possible supplemental services from the National Family Caregiver Support Program (NFCSP), affiliated with the U.S. Department of Health and Human Services. The services might include legal aid, clothing, athletic supplies, even housekeeping help.
The NFCSP is administered by the U.S. Administration on Aging. Your local county Area Agency on Aging is a good place to start when researching these government agencies or seeking other help available to you. For answers to other questions, check your nearest Social Security Administration office, county and state department of social services and family support services.
Support Groups
A support group, be it family members or other grandparents, can be a great source of encouragement when the going gets tough. Grandparent support groups may be found through your local senior center or family-services agency, and on the Internet.
“The one thing we have in common,” writes Kathy Reynolds on the home page at GrandsPlace, an online support service, “is the love we have for our families, the knowledge that we must do what is right no matter the personal costs . . . We pick up the pieces of shattered families and try to heal the pain that we may not have caused, but cannot ignore.”
No Regrets
Grandparents sacrifice a great deal to set aside their plans and become parents to their grandchildren. But, as one 47-year-old grandmother puts it, “. . . we’ve never looked back. Each day has so much to see, hear and learn when you’re a child. We watch life through the eyes of a child. I have been blessed.”
Adds Tess: “I try to hand my worries over [to God] and count it all joy as our grandchild is safe and sound and well-loved with us . . . Christ in me is my strength.”
* several names have been changed
Helpful Web Sites
Generations United* Fact sheets, state and federal policies, program information
Grand Parent Again* Information, support groups, resources
*(Note: Referrals to Web sites not produced by Focus on the Family are for informational purposes only and do not necessarily constitute an endorsement of the sites' content.)