In many homes across America today, a grandparent (or third party) is the one raising a child or children of the biological parents. This may be for many reasons; typically, it is due to the instability of a parent, physical or mental health issues, drug use, incarceration of a parent or a pure lack of the ability and/or desire of a biological parent, well, to parent. This blog addresses what happens when a grandparent (or third party) becomes a bonded caregiver for such children and what steps they can take to keep “custody” in the child’s best interests.
Over time, a child–left behind primarily in the care of the grandparent or third party—forms a bond and attachment with the grandparents. The child sees that person as their parent. However, without legal action, a child may be removed from this healthy and stable living arrangement by the Department of Child Services by actions of the removed parent or where the parent just shows up one day at a random time to pick up their kid to try out parenting. The grandparents have no custodial rights to protect against removal by DCS or a parent taking the child (and the police may well assist the formerly absent parent to get his/her child back). This blog addresses options for grandparents (or third parties) who are in this situation.
When DCS/CPS becomes involved, the general objective or goal is reunification of the child with their biological parent who “had physical custody before the DCS action began”. Without a legal order, the grandparents have no real objection to removal by DCS or the absent parent; legally, the parent or parents had custody from DCS’ perspective. Ordinarily, it is only when DCS moves to terminate parental rights that it will consider custody, adoption, or guardianship of the child by a grandparent or third party. If you are a grandparent or third party that has provided and is providing care for a child, you should know, consider, and act on your three legal options well before it becomes this type of nightmare situation:
The first option is guardianship. A guardianship, for all practical purposes, is custody of a child, but it is ordered by a court and provides the legal document necessary to possess the child in the grandparent’s or a third party’s home. Essentially, the order allows the grandparent or third party to act as if he or she were the parent. A guardianship may be used if there is no a paternity case or dissolution case pending anywhere in which the custody of the child is determined. As long as the guardianship exists, the guardian is legally empowered to act as a parent would do.
The second option is third party-custody. Custody can be obtained either as a de facto custodian or as a third-party custodian through a paternity case that is open, a dissolution of marriage case in which the custody of the child is determined, or by opening a miscellaneous action in court to determine custody. This may have effectively the same result for the grandparent or third party-caregiver as a guardianship, but each are different tools to be used in any given case or that may unable to be utilized.
The third option is adoption. Adoption may be an option in matters where the biological parents have abandoned the child for certain periods of time. Adoption is effectively permanent because it terminates the biological parents’ legal rights to rear their children. There are many reasons an adoption may be considered, or rejected, in any given case, depending on your needs.
These are not always easy options to pursue and may require the assistance of an attorney, and court filings, but can allow you to maintain “custody” of the children you are raising for someone else so that their best interests are met. Now you know your rights if you are raising someone’s children. Dixon & Moseley, P.C. advocates handle domestic custody case of all types throughout the state. This blog is not intended as legal advice or a solicitation for services. It is an advertisement.
