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Grandparent’s Rights- Now We Have Some

Editor’s note: The identities of the individuals featured in this story are being withheld to protect the children involved in this custody case.

When I first started my practice over 20 years ago, I was approached by one of my first clients who was a new grandmother to a one month old baby. The father was in prison due to a drug addiction and the mother had left the baby in the grandmother’s care and disappeared. What could she do? The only option at that time for my client was to either attempt to terminate the parent-child relationship with both parents and adopt, or obtain a legal guardianship. Being related to one of the parents, the hope was that, in time, both parents would improve their living situation and be able to provide a healthy, stable home for the child. So we filed a Petition for Legal Guardianship, which was granted.

Years later, one of the parents suddenly appeared and demanded the child back. Back then the criteria to terminate a legal guardianship was merely that the parent demonstrate an improved living situation compared to the one that existed at the time of the guardianship. This was a pretty low threshold.

Many families experience difficulties, whether it be with drug use, alcoholism, mental illness, health-debilitating conditions, unstable living conditions or economic hardships that lead to loss of home or need for relocation. These factors can lead to the need for assistance by a caring family member or other person to step in and provide a stable home life for the children.

This article will cover some of the options now available to not only grandparents, but other family members or persons interested in the welfare of a minor child.

Legal Guardianship: A legal guardianship, simply put, may be filed by any family member or person interested in the welfare of a (minor) child, when the parents are not available to provide a
stable home environment, or when abuse, neglect or abandonment has occurred. It can be initially entered for six months, and then a longer period if necessary.

Legal guardianship allows the Petitioner (the person who initiates the action) to step into the shoes of the parents. It grants them the right to have the child live with them, make decisions about
visitation with the parent(s), sign for medical care and school-related needs (registration, school records, school conferences, etc.). It does not terminate the parent’s rights. The hope with a legal guardianship is that during the time the child lives with the guardian, the natural parent(s) can improve their living situation, for example, complete rehab /drug/alcohol treatment, finish their time in prison, get mental or medical health treatment, find acceptable housing.

The laws have changed from when that first client’s situation came to court, so that now a legal guardianship of a minor child may be terminated on two conditions; an improved living situation compared to the one that existed at the time the guardianship was entered, and it is in the best interest of the child. Sounds like a simple change, but the results can now be totally different with this second condition.

A legal guardianship can be terminated voluntarily by the guardian when things improve, or by court order if the parent files and can prove to the Court they meet both criteria.

De Facto Custodian: A de facto custodian is a family member of a minor child who has been the primary caretaker and financial supporter of that child for a period of time. There are other criteria that also need to be met so that each case is fact dependent. Once those rights are confirmed by court order after filing the action, the de facto custodian then has the legal right to custody and access to records the same as if he or she was a parent. The difference here is that the child has resided and has been supported by the de facto custodian who is a family member, for the required period of time.

Grandparent Visitation: Grandparent visitation is now statutorily provided for under the law. Before this law was established grandparents had no recourse if the natural parent(s) did not allow
contact. This more often occurs when one parent dies or disappears and the remaining parent does not allow contact. A Petition for Grandparent Visitation Rights can be filed if the grandparents and parent(s) will not agree to visitation. The burden is on the grandparents to demonstrate that it is in the best interest of the minor child that they have contact.

Termination and Adoption: In case of abuse, neglect or abandonment of a child by the parent(s), a Petition for Termination and Adoption can be filed with the Court. This is an extreme action, permanently ending both parents’ rights, and used under very specific circumstances.

Each of the above options is dependent on the facts of the case and the desired outcome of the person seeking legal action. An experienced family law attorney can listen to the facts, the wishes of the client, and then help best determine which option to pursue for the optimal outcome for the family.

If you are a relative or person interested in the welfare of a child whose basic needs are not being met or who is living in an unstable home environment, call Merrilee A. Parr for a legal consultation at (208) 667-1227. Click here for more informative articles, or call the office at (208) 667-1227 for an initial consultation.

DISCLAIMER: Informational articles are not legal advice and are not to be construed as establishing an attorney client relationship.

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