There are many reasons why a grandparent must begin providing primary care for a grandchild in place of a parent. Whatever the reason that a parent is unavailable to care for a child, a grandparent is likely a trusted family member known to the child, which makes a grandparent a good choice as a caregiver. If you find yourself needing to be the primary caregiver for a grandchild, it is important to take the right legal steps so that you can make important decisions for a child and take steps like registering a child for school or seeking medical care.
Because there is a family relationship between the grandparent and child, it is easy to believe that a grandparent can simply step in without involving the law. Unfortunately, this is not the case. While a grandparent can provide childcare services, he or she cannot make important decisions since the law only allows a parent to make certain decisions in the absence of a specific court order.
If you are faced with a longer term care situation for your grandchild, there are two possible legal roads which you can take to provide you with the legal authority to make decisions and take actions for your grandchild. The first road is called third party custody. If a court has ever issued a custody order for the child – such as in a paternity case or a divorce — that court will be the one to make future custody decisions. A grandparent who needs or wants to take custody of a grandchild must approach the same court which issued a custody order to ask that the grandparent be permitted to participate in the divorce or paternity case that the parents opened previously. This process is called “intervention”. Once a grandparent has been granted the right to intervene in the divorce or paternity case, the grandparent asks for custody as a non-parent or third party. To prevail, the grandparent must overcome the presumption that living with and being cared for by one of the parents is the best place for the child and must prove that the best interests of the child are served by living with the grandparent.
The second route is called guardianship. A guardianship is a legal arrangement where one person is granted the legal authority to be the caregiver of another person’s money, major life decisions or both. If there is no prior custody order for the child, a grandparent seeking to be the primary caregiver asks the court for guardianship. This process is similar although somewhat different than third party custody. The grandparent will have to demonstrate that there is not a parent available to provide care for the child who is in need of care because of age. In addition, a guardian must meet certain qualifications to be an appropriate caregiver.
Whether a grandparent has obtained an order granting him or her third party custody or an order of guardianship, that grandparent can now enroll the child in school, place the child on insurance, obtain medical care and make all the major life decisions for the child. The court will likely review the guardianship or custody arrangement over time to make sure that it is working for the child’s interests.
