THE BLOG
09/15/2016 07:01 am ET Updated Sep 16, 2017

When Grandkids Need You To Care For Them, What Are Your Legal Options?

Your adult child and their spouse have been struggling lately to take care of their kids. Maybe work is too much, or other issues are lurking beneath the surface that are endangering your grandchildren's well-being and making it best that they live with a different caregiver. Should that caregiver be you?

As the saying goes, "it takes a village to raise a child," and as the village elders, the intergenerational relationship between grandparents and grandchildren is an important one. Grandparents are there to pass on to their grandchildren important pieces of family history and identity. Grandparents can also be a source of emotional and financial security in families, which may be a leading reason why grandparents are often called upon to step in when adult children need help coping as parents.

In the United States, an estimated 4.9 million children live in the primary care of one or both of their grandparents. Some of these grandparents have adopted their grandchildren and established a formal parent-child relationship. But adoption is not the only legal option grandparents have for acquiring primary caregiver status. When an adult child is not able to parent their kids, grandparents can step in to help in a number of ways.

Visitation: When a child is removed from the parental home and placed in foster care, the parent or parents have typically gone through a legal process in which their parental rights have been suspended, either temporarily or permanently. If parents have drug addiction issues, for instance, the state may rule that the child is to be placed in foster care until and unless the parents complete a rehab program and prove to the courts that they are committed to recovery.

Where does this leave you as a grandparent? While parental rights may have been revoked, your limited rights as a grandparent to see your grandchildren generally remain, though exact state law on this will vary. If your grandchild is in foster care, you may be able to ask the courts for visitation or "grandparenting time" with the child, usually a set number hours during the week that the two of you can spend together. Be aware that under some circumstances, the courts may decide that supervised visitation is appropriate to discourage the grandparent from trying to facilitate a way for the parent to see the child. Another option some grandparents pursue is to step in to serve as the child's foster parent.

Shared Custody: Depending on the situation your adult child faces, you may want to work out a custody relationship in which you and your child (or daughter- or son-in-law) share legal custody of the child, meaning that you and your grandchild's parent will share responsibilities for medical and education decisions, religious upbringing, and more. You may also decide to share physical custody, in which your grandchild splits time between living with you and living with your child. Some grandparents and adult children may broker agreements for these kinds of custody relationships through mediation in an out-of-court setting. You may want to share only legal custody of your grandchild, or physical, or both. In military families, for example, temporary physical and legal custody may granted to grandparents when one or both parents are away on active duty service.

Legal Guardian: Grandparents who want more contact and presence in their grandchild's life after placement in foster care can consider becoming the child's legal guardian. Sometimes called kinship legal guardianship, as it is here in New Jersey, becoming a guardian to a child requires you to take on full care of the child, including participating in any legal child welfare matters that may be lingering. In some states, including New Jersey, kinship legal guardian status is only granted after the grandchild has been living with the grandparent for a year. Before this time, the grandchild is still considered in foster care.

Adoption: Gymnast Simone Bile's family background made headlines at the Rio Summer Olympics after it was revealed that the gold medalist had been adopted at a young age by her grandparents, whom she has long since called Mom and Dad. Controversy swirled after news commentators seemed to question the legitimacy of this arrangement, but let's be clear: When you adopt a child, regardless of any previous relationship with that child, the act of adoption establishes you, by law, as a parent. Whether or not you wish to still be called Grandma or Grandpa, or transition into Mom or Dad, or another moniker all together, is no one's business but that of you and your newly adopted child. Adoption is final and permanent. It's a big step and for many grandparents, it's the next logical step in safeguarding and securing their grandchildren's future.

What's right for you? If you are thinking about taking on more direct care of your grandchild or grandkids, at any level and for any amount of time, it's a great idea to sit down with a family law attorney to understand the process that each of these options entails and which ones truly fits your grandchild's needs -- and your own. As a grandparent, you always want what's best for your grandchild. And what's best could, in fact, be you!

For further information and support for grandparents considering adopting grandchildren, the NJ Department of Children and Families' Kinship Legal Guardianship page is filled with helpful resources.

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