Grandparents often take over guardianship of their grandchildren to legally obtain medical care for the child or remove the child from a difficult or unsafe home. State courts with jurisdiction over matters of custody and family-related issues grant guardianships when specific circumstances of neglect, abuse or dangerous conditions are proven to be present in the child's life. While it is generally preferable to seek a guardianship with the advice and assistance of an attorney, grandparents can file such a request themselves directly with the courts when they cannot afford an attorney.
Guardianship and the Termination of Parental Rights
Guardianship over minor children is the legal grant of limited rights and obligations for the children's care and support. It does not necessarily involve terminating the rights of the parents (although it may). Guardianship grants a caregiver the formal and legal right to provide for the child’s basic needs, including shelter, food, clothing and education. The child’s guardian and grandparent thereafter has the authority to make decisions about the child’s life and future, including medical decisions.
In some cases, guardianship may be established for a limited amount of time or until the circumstances that warranted the transfer of rights are resolved to the satisfaction of the courts. In other cases, the guardianship may last until the child reaches the age of majority (typically 18 years old). If the child has extensive medical or other needs due to incapacity or illness, the court may authorize the guardianship beyond the child’s 18th birthday.
Reasons Grandparents Can File for Custody of Grandchild
In cases of abuse, neglect or dangerous home conditions where the safety and well-being of minor children are at risk, state agencies may seek to have the children removed from the home and the care of the parents.
In those cases, both courts and social workers prefer to place the children with relatives where that option is safe and appropriate. Giving temporary custody to grandparents is usually preferable to placing the children in the foster care system.
Seeking a Voluntary Transfer of Custody
Interested grandparents may be able to take action in the children’s best interests before the involvement of child protective services officials by contacting the child's parents to discuss voluntarily signing over custody of the child or children to the grandparent.
In some cases, parents realize the negative impact of certain circumstances on their children and agree to transfer custody of a child to a grandparent for the child's benefit. Where possible, working out a voluntary agreement between the parents and grandparents is usually easier and less disruptive for all parties involved, including the children.
Preparing a Case for Guardianship
If the parents refuse to transfer legal custody of their children to a grandparent on a voluntary basis, the grandparent seeking guardianship will need to pursue the matter legally. Before filing for guardianship, it’s a good idea to spend some time gathering evidence and conducting research to prepare the case.
The best evidence of neglect, abuse or mistreatment consists of medical records, which can only be obtained by the child’s parents (or current legal guardians) under medical privacy laws in the U.S. The next most-persuasive evidence includes photographs and videos of conditions or injuries. Written statements from any witnesses to the conditions of the home or other allegations also help to establish the case.
Finally, the petitioning grandparent will also need to learn which extraordinary circumstances are sufficient to establish the grounds necessary for a guardianship. A local law library or state bar association’s website are excellent resources for basic information about guardianship cases and what to expect. Petitioning grandparents may also wish to contact a family law attorney. Even though the goal isn't to seek formal representation, many attorneys will be happy to assist concerned grandparents with preliminary guidance and strategic advice.
Read More: Can a Legal Guardianship Expire?
Filing a Guardianship Case
In filing a petition or complaint with the appropriate court, the grandparent must follow that court’s procedural rules to the letter. At minimum, this includes providing all the pertinent information relating to the case, including the specific reason for the request, full names of both the children and their parents, the dates of birth of the children, and physical and mailing addresses.
Grandparents seeking a guardianship must serve the petition on the grandchild's parents, typically through a process server or sheriff's officer. The document instructs the parents about any planned court hearing and the process required to answer the summons and petition.
Attending the Guardianship Hearing
The court will notify all involved parties of the date and time of all hearings in the case. However, it's advisable for petitioners to begin preparing a guardianship case well before that happens. This includes gathering physical evidence and securing witnesses to take to court to provide supportive testimony.
Petitioners have the right to cross-examine any witnesses to the case as well as the grandchild's parents. It's a good idea for the grandparents to plan out the questions they will need to ask in advance, as well as what they plan to say in their own testimony, to present a straightforward and compelling case before the judge.
If the judge finds in favor of the grandparent, a date and time to take physical custody of the grandchild or take over his affairs will be set by the court. If the court decides against granting a guardianship, the grandparent has the right to appeal the decision, usually within 30 days. No matter what the result may be at trial, all parties should make copies of the judgments and orders from the court and keep them in a safe place for future reference.
- LegalZoom: What Does Legal Guardianship of Grandchildren Mean?
- Attorneys.com: When can grandparents get custody of a grandchild?
- McKinley Irvin Family Law: Tips for Grandparents Seeking Custody of Grandchildren
- 211 of Connecticut: Kinship Caregivers/Grandparents Raising Grandchildren/Custodial Relatives
- Justia: Grandparent Custody and Visitation
Annie Sisk is a freelance writer who lives in upstate New York. She holds a B.A. in Speech from Catawba College and a J.D. from USC. She has written extensively for publications and websites in the business, management and legal fields.