What are the legal Options for Grandparents Raising Grandchildren?

Usually, Powers of Attorney, guardianships, adoptions, foster parenting and child custody matters are legal methods to provide grandparents with varying levels of responsibility for grandchildren. If you are one of the many people who raise children of others, we commend you. You are not alone. The AARP reports that nationally, 4.5 million children are living in grandparent-headed households (6.3% of all children under age 18). This represents a 30% increase from 1990 to 2000. There are another 1.5 million children in the United States who are living in households headed by other relatives (2.1% of all children under 18). In Colorado there are 51,325 children living in grandparent-headed households (4.7% of all children in the states). There are another 19,230 children living in households headed by other relatives (1.7% of all children in the state). Of the children living in households headed by grandparents or other relatives in Colorado, 28,185 are living there without either parent present. 

Raising children born to others can be extremely rewarding and fulfilling, but also presents a number of challenges, including financial worries, difficulties enrolling children into school and struggles with qualifying the children for various support, healthcare and other benefits. This article helps to provide grandparents and other raising children born to others with information as to various legal alternatives to help them resolve these difficulties.

There are different processes available that provide non-parents with the power to make decisions regarding children in their care. The method chosen depends on various factors, including:

1. Whether an emergency or child safety issue exits that requires immediate intervention;
2. Whether the birth parents are present and willing/able to consent;
3. The level of decision making required;
4. How long decision making powers are needed;
5. Whether there are special financial needs of the children and/or their care providers and
6. The involvement of the Department of Human Services (also called Department of Social Services, Child Protective Services, or Child Welfare Authorities in some jurisdictions), or law enforcement authorities.

Decisions related to children can be made in multiple courts within the Colorado Court System, including the Juvenile Court (examples include dependency and neglect matters, paternity cases, truancy and some criminal matters), the Domestic Relations courts (part of the civil district courts – examples include divorce and parental rights matters between married and unmarried persons), and the Probate Courts (examples include guardianships and approval of settlements made to minors.) Generally, the least restrictive alternatives are favored. The least restrictive alternative is the alternative that imposes the fewest restrictions on the civil rights of the birth parents. Because parents have a fundamental right under the U.S. Constitution to the care and control of their children, courts will not intervene to limit a birth parent’s right against the wishes of the parent without just cause.

Helpful Resource: AARP Colorado Fact Sheet for Grandparents and other relatives Raising Children, September, 2005. Copies are available at www.aarp.org/grandparents and from the AARP Grandparent Information Center at 888-687-2277.1.

A list of legal alternatives which provide decision making authority to non-birth parents is provided below. The list begins with the least restrictive alternative and proceeds to the most restrictive:

1.Authorizations and Releases (also known as “Delegations of Authority”) Authorizations and releases are used when decision making is needed for a limited period of time. Common examples where releases are used include consent forms that enable another adult to consent to emergency medical care of a child while away from home at camp or on a school field trip if parents cannot be reached. They typically involved limited decisions under limited circumstances. The advantage is that they are simple, inexpensive and do not require any special legal or courtroom process. Parental consent is generally needed and a child’s consent may also be needed under certain circumstances (where mental health treatment of teens and childbirth or contraceptive/abortion treatment is sought). Releases can be revoked by parents at any time and parental rights are not terminated. One problem with releases is that they may not be accepted by certain authorities as it can be difficult for the person or institution that is presented with the release to determine if it is genuine and valid.

2. Powers of Attorney (“POA”) Powers of Attorney are written documents that transfer the decision making authority of one person to another, usually upon the occurrence of certain specified events. The longest period of time they may currently last by statue in Colorado is about one year. Powers of Attorney usually grant more power than Releases. They are still quite simple to prepare, are relatively inexpensive and do not require a court procedure. Parental consent is generally needed and birth parents must be willing and able (have the capacity) to give the Power of Attorney when it is executed or signed. Problems may occur if a parent lacks the capacity to sign a POA when it is needed, such as where there is mental illness, intoxication or a lack of consciousness due to illness or injury that affects a parent’s ability to understand the process. If a person signs a POA when they lack the capacity to understand the powers they are giving up, the POA is invalid. The POA may last until revoked. The problem with a POA is similar to Releases – it is often difficult for an individual presented with a POA to determine if it is valid. Banks and other institutions are often fearful they will be sued if they unknowingly honor a POA that later turns out to be invalid. For this reason, POAs may not be accepted by certain schools, banks and other authorities.

3.Guardianship Guardianship in the state of Colorado refers to the care and custody of a person. (“Conservatorship” is the term used in Colorado to refer to the management of the financial affairs of a person). These terms have different meanings in different states. The Veteran’s Affairs guardianships, for example, are similar to conservatorships in Colorado.

Guardianships can be obtained for minors and adults deemed to be incapacitated by the court. A court procedure is needed. The Colorado Uniform Guardianship and Protective Proceedings Act found at Colorado Revised Statutes starting at Sections 15- 14-101 provide the standards and procedures needed. Additional information can be obtained from the Colorado State Court website self-help center at http://www.courts.state.co.us/chs/court/forms/selfhelpcenter.htm Guardianships for minors may be needed if:

A minor’s parents have died A minor’s parents cannot be found One or both parents are unable or unwilling to care for their child (examples: parents are in jail or on drugs) 

Requirements for a Guardian: A Guardian must be 21 years old, and can be non- residents of Colorado. The statute also lists the priority of persons who may serve as guardians. Incarcerated parents must be personally served and have a right to object to the process. The person nominated to serve as guardian must agree. Parental consent is required if the parents are alive. If they cannot be found, notice by publication is required. There are specific requirements that must be met to notify the parents. Other laws should also be reviewed that may also control, including the Indian Child Welfare Act (“ICWA”), the Parental Kidnapping Protection Act of 1980 (“PKPA”) and the Uniform Child custody Jurisdiction and Enforcement Act (UCCJEA). The Guardian must also be determined to be appropriate under the circumstances, which in Colorado also usually includes providing a background check and a credit report.

There are different types of Guardianships:

Advance Appointment: This can be accomplished by a parent who believes, due to illness or other cause, that he or she may be unable to parent his or her child within two years. This requires a court procedure and consent of the minor if the child is age 12 or over. The benefit is that it allows a parent to specify who that parent would like to serve as guardian and have that person confirmed by the court to prevent others from objecting later on. A legal process is required. Emergency: This can be obtained if the parents cannot be located pursuant to Colorado Revised Statute Section 15-14-204(5). The emergency guardianship currently lasts 60 days if substantial harm to a minor’s health and safety is found and no one else can be located who has authority to act for the minor. The power granted may be limited by the court. A legal process is required.

Judicial Appointment: This requires a court procedure and a finding by the court that this is in the best interests of the child. Generally, parental consent is required unless parental rights have been terminated by court order or the parents are unable or unwilling to act. Judicial appointment can also occur when a prior guardian dies without appointing a successor guardian by will or signed writing.

Guardianships do not terminate parental rights and are generally considered a temporary measure. (CRS 15-14-202(7)). Guardianships terminate upon death of the minor, adoption of the minor, emancipation of the minor, a request for termination of the guardianship by the birth parents and/or court order.

A guardian is not required to use personal funds for the ward’s expenses (CRS 15-14- 209(2)).

A guardian may be required to cooperate in filing a child support action on behalf of the child.

Venue, or the location of the guardianship action, exists where the minor resides or is present at the time of the action. If the child s not a resident here, the court ma only have temporary jurisdiction until the emergency guardianship ends.

4.Foster Parent The Department of Human Services (DHS) is always involved in these matters. The foster parent has to go through a specified qualifying process, take classes, attend meetings, and follow DHS rules. Background and criminal checks are performed. Foster parent status is considered a temporary measure to safeguard the child until a plan to reunify the family can be attempted. The permanency plan generally needs to be completed within one year. If the birth parents can’t comply with the family service plan, parental rights can be terminated and custody can be given over by court order to a relative or the child may be placed for adoption. Adoption of a child generally cuts off the grandparent visitation rights of the parents of the birth parents. Foster parents qualify to receive subsidies or payments while the case is open. These payments are higher than Temporary Assistance for Needy Families (“TANF”) discussed below. This can be an advantage for the very poor, but because the payments usually end when the case is closed, the payments usually end within a year (the time the permanency plan needs to reach conclusion). Foster parents are the sometimes the only way a non blood relative may obtain financial assistance as a caretaker.

Other financial assistance for Grandparents raising Grandchildren: TANF (Temporary Assistance for Needy Families) is available for foster parents while they are waiting to qualify as foster parents. TANF “child only grants” are available for the child. These are generally less than the foster parent subsidies but last until the child turns 18. The child generally qualified for Medicaid and supportive payments for non-covered items such as school fees, clothes and day care in El Paso County. While a child’s own earned income does not disqualify the child from receiving the benefit, TANF can not be received if one of the birth parents is receiving child support from the other parent or is receiving SSI. Rules change so the Family Support Team at DHS should be contacted for further information at 719-385- 7932. To apply for TANF, contact DHS. The grandparent advocate may be contacted at 719-444-5229. Grandparent Support Groups also exist. Call 719-444-5229 for more information.

5.Allocation of Parental Rights and Responsibilities (“Custody”) The term “custody” of children is no longer used in legal proceedings in Colorado as it was thought to dehumanize children. Instead, the term “allocation of parental rights and responsibilities” (“APR”) is used to refer to parental rights and obligations related to parenting time, decision making and support of children. APR is needed when a guardianship is in place and birth parents decide that they want to terminate guardianship. If an individual has had physical care and control of the children for 6 months or more and disagrees that it is in the best interests of the children to return to the care of their birth parent(s) they must file a court action for APR. The action must be initiated within 6 months of the time their physical care and control of the children terminates. The person bringing the APR matter needs “standing” (or needs to qualify to bring the action). For the non-parent to have rights to continue to care for or visit the children over the parents’ wishes, the court will need to make specific findings that this is in the best interests of the children.

Custody can also be granted by juvenile court in Dependency and Neglect proceedings if the court finds a more permanent plan is needed. Grandparent or Non-parent visitation: More complicated legal proceedings are often needed where a non-parent desires visitation with children and the birth parents disagree. A biological parent has a first and prior right to the custody, care and control of his or her children. Legal counsel should be consulted in these circumstances.

6.Adoption/Termination of Parental Rights Children may be adopted if parents voluntarily relinquish their parental rights or if the Court terminates parental rights due to abandonment, neglect or abuse. Special court proceedings are required. When a grandparent adopts a child, they are then responsible for the financial support of the children and the TANF goes away. This can be a financial burden for many. Because the birth parents rights have been terminated, the birth parents no longer have an obligation to support the child. Sometimes grandparents are placed in the difficult decision of having to decide whether to adopt their grandchildren or allow them to be adopted by someone else who might not easily permit the grandparent to visit their grandchildren in the future. In these circumstances, legal counsel should be consulted. 

IMPORTANT NOTICE: THIS INFORMATION IS PROVIDED FOR GENERAL INTEREST ONLY. LAW AND PROCEDURE CHANGES CONSTANTLY. AS SUCH, THE INFORMATION PROVIDED ABOVE MAY NOT BE ACCURATE. YOU SHOULD NOT RELY ON THE ACCURACY OF THE INFORMATION PROVIDED AND SHOULD SEEK LEGAL COUNSEL FOR CURRENT INFORMATION.

 

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Lynn Landis-Brown is a Family Lawyer in Colorado Springs, Colorado, where she founded Lynn Landis-Brown P.C. She listens compassionately and understands your legal, emotional and financial concerns due to her own experiences of divorce from her parents divorcing, her own divorce and now as a step-grandmother. With her background in litigations, she has great experiences with fighting for your rights in the courtroom.