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Some legal options apply for grandparents caring for grandchildren

Published on -10/21/2013, 3:17 PM

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Editor's note: This series first appeared in The Hays Daily News in 2010.

* * *

This is the fifth in a series about grandparents raising grandchildren.

Q: What are legal options for grandparents raising grandchildren?

A: Unless grandparents have some type of legal custody, even if they are assuming total responsibility for the care of their grandchildren, parents still have the legal rights to make decisions regarding their children.

In a recent Oklahoma State University survey that sampled thousands of households in which grandparents were raising grandchildren, most of the respondents indicated they had no legal connections with their grandchildren.

The grandparents tended to think they were assuming care of their grandchildren temporarily when, in actuality, they eventually became permanent caregivers.

Oklahoma did pass legislation in 2005 that allows grandparents to participate in custody and other legal proceedings. Previously, grandparents who provided long-term care for grandchildren had no legal rights to the children.

Some states have consent laws or caregiver authorizations that allow caretaker grandparents to enroll children in school and to seek medical care. Such legal considerations vary from state to state.

Most importantly, these legal consent forms do not give grandparents legal custody. If grandparents or the children's parents disagree about decisions, the parental legal rights have priority.

The following types of legal status are available to grandparents through the courts in Kansas. The first of these is legal guardianship. That type of authority is granted by probate courts and guardianships usually require guardians report periodically to the court. Guardianships for incapacitated persons, such as mentally challenged adults or older persons with Alzheimer's, are more common than guardianships for grandparents caring for their grandchildren.

Grandparents considering any types of legal relationships with their grandchildren always should consult with their attorneys before making any decisions.

In Kansas, a second custody type is classified as legal custody, which gives parents or parent surrogates the right to make all day-to-day and all major decisions about the children. Most parents have joint legal custody.

If children's parents are dead, abusive, incarcerated, terminally ill or have abandoned them, grandparents can obtain legal custody.

Legal custody might be granted on a temporary or permanent basis. That decision varies somewhat from court to court and state to state.

Parents continue to have visitation rights when grandparents have legal custody unless denied by the court.

The courts also can order supervised visitation. Or the courts can issue protection orders denying parental visits because they are detrimental to the children. With legal custody for grandparents, parents can be ordered to pay child support. They also can be ordered to pay child support to grandparents who have legal guardianship.

The third type of legal custody is adoption. In this arrangement, the parents no longer have any legal relationships or legal rights to the child. Adoption is permanent and parents cannot request custody later.

In cases in which parents are beyond reclaiming their parental rights, adoption is the best option for the children's safety and security. Parental financial support obligations end with adoption.

Some grandparents become licensed foster parents. In Kansas, such an arrangement is called kincare.

The advantage of entering the foster parent system is kincare grandparents generally qualify for the same financial support and benefits as foster parents.

Grandparents with kincare also have legal rights regarding enrolling children in school and providing medical care. However, in kincare, the children are legally in the custody of the state of Kansas. Thus, the grandchildren are not officially in the legal custody of their grandparents.

No matter what the sources of information about grandparents raising grandchildren, authorities recommend caretaking grandparents establish legal relationships with their grandchildren. These recommendations stem from studies documenting the majority of grandparents do not have these legal rights. Without them, parents can reenter and reclaim their children over and over again, whether they are fit parents or not. Moreover, the lack of legal rights for grandparents blocks them from financial support and access to other support services.

Judy Caprez is associate professor and director of social work at Fort Hays State University. Send your questions in care of the department of sociology and social work, Rarick Hall, FHSU.

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