Grandparents May Seek Custody of Grandchildren in Many Different Ways

Grandparents rights in OhioToday 1.4 million children in the United States are living with their grandparents—some in an informal relationship and others in an arrangement where grandparents have gone to court and won legal rights.  If faced with such decisions, here are some of the options to consider.

Legal relationship options for grandparents who are raising grandchildren.

There are three custody arrangements that provide broad legal protections to grandparents in Ohio—legal custody, guardianship, and adoption.  All three legal relationship options require that grandparents go to court.

Legal custody

Grandparents custody rights are obtained by getting a custody order from a judge in juvenile or domestic relations court.  Grandparents have to prove that the child’s parents are unfit unless the parents have voluntarily given up parental rights.  If both parties (parents and grandchildren) are not in agreement about the custody of the child, the grandparent must prove to the court that it is in the best interest of the child or children to be raised by someone other than the parents.  Sometimes even though it is shown to be in the best interest of the child to live with the grandparents, the court makes a different decision.

Neglect or abuse of a child should be reported to the County’s Department of Social Services.   It is also important to document any reason why a child should be removed from the custody of his or her parents.  This is not a decision that the court takes lightly and supporting evidence should be presented when grandparents custody rights are being sought by the grandparents or another party.

Legal custody gives the grandparents authority to make daily decisions about the grandchild’s welfare.  Grandparents custody rights and grandparents guardianship of a grandchild provide the most legal rights for grandparents other than outright adoption.

However, grandparents custody rights may not be permanent.  Parents can petition the court to regain custody and may succeed.

Guardianship

Guardianship is similar to legal custody, but is handled by the probate court.  Grandparents accept day-to-day care-living responsibilities while parents retain some of their rights, including visitation if they so desire.  Parents can regain their parental rights in the future in some cases.  Sometimes grandparents guardianship of a grandchild provides them with more authority than grandparents with legal custody.

Adoption

This option is permanent.  The grandparent takes on all parental responsibilities and the child’s biological parents no longer have any parental rights.  The grandparent becomes the legal “parent.”   The parents cannot later request that custody be returned.

Temporary custody options

When a child has been removed from their parent’s home by the state, another option for grandparents raising grandchildren is formal or informal kinship foster care.  With formal kinship, you can take care of your grandchild’s daily needs, but you do not have legal custody and the foster care is not permanent.  The grandparent does not make major decisions about the grandchild’s needs without consent from the state agency that oversees foster care.

Grandparents can receive payments to help manage costs, but they are held to the same standards as other foster parents which can mean home visits, training sessions and evaluations.

In informal kinship foster care, the state places the child, and there is no further oversight or interference, but with informal kinship foster care, there is no monetary assistance.

Power of attorney (POA)

This document (the POA) allows grandparents to exercise parental authority over grandchildren who live with them, but it does not change legal custody or child support. The POA is signed by a parent, guardian, or custodian who transfers authority to the grandparent.   The authority can only be created in certain circumstances such as when the parent, guardian or custodian is incarcerated, physically or mentally ill, homeless, being treated for substance abuse or when the parent, guardian, or custodian believes the POA is in the child’s best interest.

The POA authorizes the grandparent to provide care, physical custody and control of the child and to enroll the child in school, obtain school information and consent to school-related matters.  The holder of the POA may also consent to medical, psychological and dental treatment.

In Ohio, the POA must be completed on a specific form and required signatures must be notarized.  It must then be filed within five days of the notarization in the juvenile court in the county where the grandparent lives or in another court that has authority over the child.

A child custody affidavit (the child’s custodial history) must be filed with the POA as well as information about the grandparent applying for the POA.   No hearing or court approval is necessary.

Caretaker authorization affidavit (CAA)

A  CAA is very similar to a POA, but is signed by the grandparent (rather than the parent, guardian, or custodian) who assumes authority after efforts to locate the parent, guardian or custodian have been unsuccessful.

Either a CAA or POA can be terminated by a parent, guardian, or custodian at any time. The authority of the documents ends when the child moves from the grandparent’s home, when a court orders a termination, or after one year has passed.  When the POA or CAA ends, the grandparent must give written notice to the court, the child’s school, medical providers and certain other parties.  Notice must be made no later than one week after the POA terminates.

A subsequent POA or COA can be filed but this time a court hearing and approval are   necessary to validate the documents.

Many grandparents find themselves in need of legal advice or assistance when it comes to important decisions concerning their grandchildren.  If parents are cooperative, these decisions can go a lot easier.  But if this is not the case, finding an attorney experienced with non-parental custody cases is a wise move.

The grandparents rights attorneys at Slater & Zurz LLP are familiar with Ohio grandparents rights and will be happy to help you resolve your guardianship or custody issues or any other issues you may face as a grandparent, such as visitation.  Please contact us at 1-888-760-8958 to have a private consultation or send a message from our website at dissolutionanddivorce.com.

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About slaterzurz

Slater & Zurz LLP is an Ohio law firm of highly experienced and respected attorneys. Over the last 40 years, we have developed a reputation for getting positive results for clients. We've been trusted with handling over 20,000 personal injury cases and our clients have received more than $120,000,000.

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