This project is funded, in part, under a contract with the Kentucky Cabinet for Health and Family Services, with funds from the Administration on Aging and the United States Department of Health and Human Services.
Please feel free to copy and distribute the information in this handbook for any non-commercial purpose.
David Godfrey, J.D.
Jesse Reid Hodgson
Laura B. Grubbs
Revision Date: January 2007
Every effort was made to make this document current through January 2007. Programs and polices change, you should always verify that the information is current before proceeding. The more time that passes, the greater the likelihood that information is out of date.
Introduction and Overview
Each year thousands of grandparents and other relatives in Kentucky assume the responsibility of raising children for biological parents who are unable or unwilling or to be parents. The care provided by these caregivers impacts the lives of the children for a lifetime. The Caregivers are confronted by many legal and financial issues. The purpose of this handbook is to offer basic information and guidance to the most common legal issues and information about programs and benefits that may help the caregivers in the role of parent.
While we hope that the information contained in this handbook will help many people navigate the system on their own, many legal issues require the assistance of an attorney. We recommend that you find an attorney experienced in family law and that you develop a relationship with that attorney. There is a directory of all lawyers licensed to practice in Kentucky on the Kentucky Bar Association web site at www.kybar.org (use the lawyer locator listed under “membership”). Families with limited incomes and limited savings may be able to get help from the local legal aid program or volunteer lawyer program. You can locate your local program by looking under lawyers or legal aid in your local phone book. If you need help locating your local legal aid program, you can call the Legal Helpline for Older Kentuckians at 800-200-3633.
Grandparent Support Groups can also offer you information, support and a place to share your concerns with other grandparent caregivers. There are many grandparent support groups in Kentucky that provide support, information and company to grandparents and other relatives raising children. These support groups can be found by contacting school officials, health clinics, senior centers and community social services agencies who work with the elderly, children and families. To find out whether there is a grandparent support group near you, or to begin one, contact:
Grandparent Information Center 601 E Street, NW
Washington, DC 20049
Bluegrass Area Development District
Bluegrass Area Agency on Aging
699 Perimeter Drive
Lexington, Kentucky 40517-4120
The challenges you face when caring for your grandchildren may sometimes seem overwhelming. However, you are not alone! The grandparent/grandchild relationship is a very special one, and we thank you for your hard work and sacrifices to keep your families together!
This handbook would not have been possible without the generous financial support of the Bluegrass Area Agency on Aging’s National Family Caregiver Support Program. This project grew from a simple idea in an email from David Bassoni in early March of 2006. I want to thank David for suggesting this project and for working with Rhonda Davis to obtain the funding to make this possible.
The research and writing of this handbook was truly a group effort. This book would not have been completed with out research and drafting by law students from the University Of Kentucky College Of Law and the Louis D. Brandeis School of Law at the University of Louisville. We owe a special thanks to Melanie Beckwith, Jessie Hodgson, Jeffery Mahoney and Robert Stith for their work on this project. This project would still be a disconnected collection of chapters and sections without the hard work Laura B. Grubbs of the Louis D. Brandeis School of Law at the University of Louisville who is responsible for editing the manuscript; I can never thank her enough for the untold hours she devoted to this project.
I would also like to thank Jamie Hamon, Executive Director of the Access to Justice Foundation for allowing me to take on this project. Somehow, year in and year out, she makes it possible for me to continue working with older Kentuckians.
Access to Justice Foundation
A Handbook For Kentucky Grandparents
and Other Relative Caregivers
Table of Contents Introductory pages i-iv
Chapter One: Legal Issues
This chapter answers the most common questions that are asked by grandparents who are raising their grandchildren. The following topics are addressed: de facto custody; custody; foster care; kinship care; and guardianship.
Custody All parents have a legal right to make decisions about the care of their children. If parents do not wish to give custody to another person, no one can force them to do so. However, when extraordinary circumstances exist that make it necessary for a court of law to decide whether it would be in the child’s best interest to be removed from the parents and be cared for by someone else, then the parent’s rights are reduced. In addition, parents can voluntarily decide to give someone else custody of their child.
There are two general types of custody, physical custody or legal custody.
What is physical custody? Physical custody occurs when a grandparent takes care of a child without a court order to do so. Physical custody simply means that a person is caring for a child for a period of time. Physical custody does not grant any legal rights, but will contribute to qualifying for de facto custodian status.
What is legal custody?
Legal custody exists when a grandparent is given the legal right to take care of the child by a judge. This is also called a “child custody determination”. A grandparent who wants legal custody has to go to court and prove to the judge that it is in the best interest of the child for someone other then the birth parents to have custody. (When grandparents have legal custody, the parents have to go to court if they want their children back.)
What does a court consider when deciding to grant legal custody? The court will determine custody in accordance with the best interest of the child and equal consideration will be given to each parent and to any de facto custodian.
When determining the child’s best interest, the court will consider all relevant factors, including:
The wishes of the child's parent or parents, and any de facto custodian, as to his custody;
The wishes of the child;
The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
The child's adjustment to his home, school, and community;
The mental and physical health of all individuals involved;
Information, records, and evidence of domestic violence;
The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
The intent of the parent or parents in placing the child with a de facto custodian; and
The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.
WHAT ELSE is considered in determining the best interest of the child? In determining the best interest of the child, the court may also consider extraordinary circumstances, including the following:
Mental illness of the child which renders the parent unable to care for the child;
Any crime by a parent which leads to the death or physical or mental disability of member of the household; and
The existence of any guardianship of the parent due to partial disability.
What happens when there are no extraordinary circumstances? If the court finds that no extraordinary circumstances exist, the court has no reason to interfere or take custody away from the parents; the parents will keep custody of the child.
who will get legal custody If there are extraordinary circumstances? If extraordinary circumstances are found, the legal custody of the child will be determined based on what is in the child’s best interest.
Can grandparents get legal custody of grandchildren if the parents do not consent? Grandparents may be able to get legal custody of grandchildren (even when the parents of the children do not agree), if they can prove to the court that there are extraordinary circumstances which require the judge to consider taking custody away from the parents, and it would be in the child’s best interest for the grandparent to have legal custody. If the grandparents do get custody, the parents may request, and the judge may allow, the parents to visit the children.
If granted legal custody, do grandparents have to pay for their grandchild’s support? Grandparents have an obligation to support and care for the child that they have legal custody of. Grandparents (and parents) are bound to educate, maintain, and support the children under their care. Grandparents also have the right to apply for public assistance programs, such as the Child Care Assistance Program offered by the state of Kentucky or Medicaid, on behalf of their grandchildren to cover the expenses of the grandchild. Grandparents with legal custody can ask the court to order the birth parents to pay child support.
Do I need a lawyer to get custody of my grandchildren? In most cases Yes. Even if everyone agrees to the custody someone still needs to file a motion with the court for the Judge to rule on. Unfortunately there are no “standard” forms for the motion. If all parties are not in agreement it is essential that you be represented by an attorney experienced in family law litigation. Contact your attorney or the local legal aid program for help.
Is legal custody permanent? No. Legal custody is not permanent and can end when either of the child’s parents asks the court to return legal custody to them or when it is no longer in the child’s best interest to continue custody. However, the court will hold a hearing to determine whether the circumstances, which convinced the court to change custody of the children from the parents to the grandparents, have changed. If the court decides that circumstances have changed, the court must also decide whether it is now in the best interest of the child to be returned to the parents.
EXAMPLE: Grandma has been caring for little Tommy for a long time. Tommy’s mother is on drugs and is always threatening to take Tommy away. Both Tommy and grandma are afraid of Tommy’s mother. Grandma decides to speak to a lawyer about going to court to get legal custody of Tommy. After a hearing, the court grants Grandma legal custody of Tommy. Grandma now has the legal right to make decisions for Tommy. However, Tommy’s mother receives rehabilitation for her addiction and improves her relationship with Tommy and seeks to have legal custody of Tommy returned to her. A hearing must be held to determine if the circumstances have changed enough to convince the court that Tommy’s mother should have legal custody returned to her.
Visitation can grandparents still have visitation rights If not granted legal custody? Yes. A court can grant visitation rights to a grandparent if the court feels it is in the best interest of the child.
if a parent has had their rights terminated by the courts, does that affect a grandparent’s visitation rights?
No. If the rights of a parent (grandparent’s child) have been terminated, it does not affect the visitation rights of the grandparent, unless the court finds that it is in the best interest of the child to do so.
When can A GRANDPARENT BE denied visitation? A grandparent can be denied visitation when it is in the best interest of the child to do so, or when the rights of the parent (grandparent’s child) has been terminated due to abandonment for a period of 5 years or more.
Do grandparents still have visitation rights if a step-parent has adopted the child? Yes. Even if a step-parent has adopted the child, grandparents can still seek visitation rights.
WHO DETERMINES if visitation is in the best interest of the child? The court will determine if visitation is in the best interest of the child. The court might consider: the custodial parent’s attitude; the possibility of conflict; the nature of the relationship between the child and grandparent; the preference of the child; and the mental and physical health of the parties.
DE FACTO CUSTODIAN What is a de facto custodian? A de facto custodian is a grandparent or other caregiver other then a biological parent who has been the primary caregiver and financial supporter of a child for at least the minimum time required under the statute. A grandparent or other caregiver of a child who qualifies as a de facto custodian has the legal right to be heard by a Kentucky court in a custody case. Without de facto custodian status, a grandparent can not seek custody of a grandchild without first proving that the biological parents are unfit to serve as parents.
How do I qualify as a de facto custodian? To qualify as a de facto custodian, you must prove you have been the child’s primary caregiver and have provided financial support for:
A continuous period of six months or more for a child under the age of three; or
A continuous period of one year or more if the child is three years or older, or has been placed in the home by the department of community based services.
The de facto custodian must be (1) the primary caregiver and (2) the primary financial supporter for (3) the requisite time period. Note that all three requirements must be met to achieve de facto custodian status. (If a parent has commenced an action to have the child returned the time after the commencement is not included in determining the required minimum time period.)
If you have questions about qualifying as a de facto custodian, consult an attorney.
what else should i know about qualifying as a de facto custodian?
De facto custodianship is not met if a parent pays child support to the grandparent and seeks visitation with the custody of the children.
De facto guardianship is found where a grandparent has provided for the safety, shelter, and security of the children.
The de facto custodian must be the primary caregiver and financial supporter, but must also do so to a greater degree than the natural parents. The grandparent must literally stand in the place of the natural parent.
What are the effects of being a de facto custodian? If you meet the de facto custodian requirements, then you possess standing equal to a biological parent in custody proceedings. This means that the court can listen to what you have to say in a custody proceeding.
After being declared a de facto custodian can MY rights be removed?
No. Once you are declared a de facto custodian your voice regarding the child’s rights cannot be silenced.
Can there be MORE THAN ONE de facto custodian for one child? No. Currently, there can only be one de facto custodian for a child. However, the people who wrote the legislation intended to allow for multiple de facto custodians and the issue will soon to be resolved at the court of appeals, the state supreme court, or the state legislature.
Can a de facto custodian seek legal custody of a child? Yes. A de facto custodian can ask the court for legal custody of a child. The court will grant legal custody of the child to the de facto custodian if the court determines it is in the best interest of the child.
what does the court consider In determining legal custody? The court will always determine custody based on the best interest of the child, with equal consideration given to each parent and any person that meets the definition of a de facto custodian.
Additional factors the court may consider include the following:
The wishes of the child’s parent or parents, and any de facto custodian, as to the child’s custody;
The wishes of the child;
The relationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;
The child’s adjustment to his home, school, and community;
The mental and physical health of the individuals involved;
Information, records, and evidence of domestic violence;
Extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
The intent of the parent or parents in placing the child with a de facto custodian; and
The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.
WHAT OTHER Issues relating to DE FACTO custody SHOULD i BE AWARE OF?
Just because you qualify as a de facto custodian based on the time the child is in your care does not necessarily mean that you will be granted custody of the child. If a parent leaves the child with the grandparent with the understanding that the parent will return and reassume care of the child, that intent to reassume care by the parent is taken into consideration and a grandparent may not automatically be granted custody. The same is true if the child was left in the grandparents care so the parent could seek work or attend school.
Example: Tommy is a one year old child. Tommy’s mother made arrangements with her mother, Tommy’s grandmother, to watch and care for Tommy so as she could look for a job. Eight months after dropping Tommy off, Tommy’s mother returns and tells his grandmother that she wants to take Tommy back home with her because she has found a job and can support him. During her eight month absence, Tommy’s mother made no contact with Tommy or his grandmother and sent no money to support Tommy. In fact Tommy’s grandmother has been caring for Tommy from her own expenses. Tommy’s grandmother would be considered a de facto custodian and have equal standing as a parent in custody proceedings but may not be granted custody by the court due to the mother’s intent to return to care for the child.
The court will not consider conduct of a proposed custodian that does not affect the relationship to the child. If domestic abuse is alleged, the court shall determine the extent to which the domestic abuse has affected the child and the child’s relationship to both parents
Example: Tommy’s mother left Tommy with his grandmother because Tommy’s father has been arrested for beating Tommy’s mother. She needed to go through therapy as a result of the beatings. Upon returning to assume custody of the child, Tommy’s grandmother refuses to allow Tommy’s mother to take Tommy home with her because she feels that Tommy’s mother is unfit as a result of the beatings. The court will determine the effect the abuse has had on Tommy; consider his relationship to his mother, and how the result will affect guardianship. Tommy’s grandmother does not automatically have the right to deny Tommy’s mother care of the child.
The abandonment of the family residence by a custodial parent will not be considered where the abandoning parent was physically harmed or was seriously threatened with physical harm by her spouse, when such harm or threat was related to the abandonment.
Example: Jane is one year old. Jane lived with her mother, Ann, and father, John, at her grandparents’ house, which Jane’s grandmother, Thelma, owns and also lives in. Thelma supports John, Ann and Jane. John was abusive to Ann, and in an attempt to escape the abuse, Ann moved out to a shelter. A year goes by and John is killed in an auto accident. Ann returns and demands that Jane move back in with her to. Thelma would be considered a de facto custodian, but because Ann’s abandonment of the home was a result of John’s abuse, the abandonment will not be considered by the court.
The court may grant joint custody to the child’s parents, or the child’s parents and a de facto custodian, if it is in the best interest of the child.
If the court grants custody to a de facto custodian, the de facto custodian will have legal custody under Kentucky law.
If either or both parents die while the child is in the care of a de facto custodian, the de facto custodian will be granted custody of the child if it is in the best interest of the child.
if two parents LIVE TOGETHER, one parent adopts the child, and then the parents separate, does the parent who did not adopt the child have rights as a de facto custodian? It depends. If that parent can meet the time and financial requirements of a de facto custodian, then yes. If not, that parent cannot be considered a de facto custodian.
A de facto custodian has legal “standing” to be heard by the courts on custody matters. Being able to establish de facto custodian status will enable a grandparent to get past the court room door.
FOSTER CARE What is Foster Care? Children who are abused or neglected by their parents may be placed in the legal custody of the State (Cabinet for Health and Family Services or CHFS) after the court has decided that their parents cannot properly care for their children. Children removed from homes are placed in a foster family home, a group home, child care institution, health care facility, or with relatives.
When a Child is placed in Foster Care, does the Foster parent have legal custody of the child? No. When a child is placed in a foster care setting, the state maintains legal custody of the child, not the foster parents.
What are the goals of Foster Care? The Resource Parent Handbook states: “The goal of foster care is to promote the protection and care of children and to provide each child with a safe and nurturing home.” When a child is placed in foster care, the state has given the Cabinet for Health and Family Services (CHFS) the responsibility to plan for the care of the child. A child may be placed in Out-of-Home Care (OOHC) for a planned period of time when it is necessary for the child to separate from his or her parents.
Court orders grant approval for initial removal of a child from the parents, continuation of care outside of the parents’ home, establishment of a permanency goal and other actions taken by CHFS. CHFS staff works in cooperation with the district, family and circuit courts to make decisions following the removal.
Is Foster Care Permanent? Foster care is intended as a temporary placement. Children in foster care may be reunited with their parents or may be adopted by another family member. What are some Initial Placement Considerations? The Cabinet for Health and Family Services (CHFS) provides an array of Out-of-Home Care placements with services and locations that are designed to meet the special needs of each child and family. Specialized placements include emergency shelter care, family foster homes, care plus homes, medically fragile homes, and residential treatment facilities.
When will a child be removed? Prior to a child’s initial removal and placement in out of home care, the Cabinet for Health and Family Services (CHFS) and the Court make a determination that the child is:
In danger of serious physical injury or is being sexually abused;
A victim of physical or emotional injury (as confirmed by a Qualified Mental Health Professional) inflicted by a parent, or injury that was allowed to be inflicted by other than accidental means; or
In immediate danger due to the parents’ failure or refusal to provide for the safety or needs of the child.
What are considerations for Foster Care homes? A child in the custody of the Cabinet for Health and Family Services (CHFS) will only be placed with a family and in a home that is approved or licensed; with a parent, when the parents’ care/home has been determined to be safe (with permission from the court), or in an approved relative placement.
The Social Services Worker (SSW) places each child in a setting that is:
The most family-like;
The least restrictive placement that meets the child’s needs; and
Closest in proximity to his home, community, school, relatives or significant attachments.
Factors that have a bearing on selection of a child’s placement include:
Available appropriate relatives;
Ability to place siblings together;
Age, physical, cognitive, mental and emotional level of development;
Any special condition (including need for medical and behavioral treatment) that may require individualized services;
Probable options for timely achievement of legal permanency;
Any placement history that may indicate the need for a placement that provides certain characteristics or services;
Resources and coping strategies that the child and caregiver possess;
Physical health needs/screening and acute treatment if needed;
Mental health needs;
History of abuse or neglect;
Maintaining contact with parents and other individuals with whom the child has significant attachment; and
Social, cultural and environmental factors such as the child’s language, religious preference, geographic location and parent and child circumstances.
Will Siblings be placed together? It depends. When placing a child in foster care, the initial placement plan should be to place siblings together, unless circumstances exist that would not be in the child’s best interest. The sibling bond is irreplaceable. Connections between siblings and significant others should be maintained to preserve the child’s emotional well-being and self-esteem.
The Social Services Worker (SSW) seeks a placement for a child:
In the most family-like, least restrictive setting;
With the child’s siblings;
That is in closest proximity to the family’s home; and
That promotes continued contact with the child's family, friends, community, and other primary connections.
When placing a child that is in the custody of the Cabinet for Health and Family Services (CHFS), a Relative Placement is normally the first option considered as it is deemed the least restrictive Out-of-Home Care setting. Many grandparents and other relatives become caregivers of children as a result of placement by CHFS.
What is the procedure for Relative Placement? The procedure for relative placement is:
The Social Services Worker (SSW) initiates a criminal records check, a domestic violence check, and a child registry check, and completes the relative home evaluation.
In some cases, the Family Services Office Supervisor (FSOS) approves placement in the relative’s home after completing the records checks and home visit but prior to completion of the written home evaluation. If this occurs, the SSW completes the home evaluation within thirty (30) working days of the placement.
The decision to place the child with a relative is based on the child’s needs and which setting is most suited to meet those needs. Criteria for the SSW’s assessment of whether it is appropriate to place a child with relatives may include:
The child’s relationship with the relatives;
The relative’s ability to meet the child’s basic needs and medical, emotional, educational, or treatment needs;
The relative’s understanding of the risk factors that led to the child’s removal;
The relative’s ability to appropriately protect the child; and
The possibility of placing siblings together.
If the child is being placed with a relative, the SSW should provide information about the Kinship Care Program, which is described in the Kinship Care section below. There are special rules that must be followed to place a child in foster care outside the sate of Kentucky.
How does one become a foster parent? To receive information describing the steps on how to become a foster parent, contact the office of your local Department for Community Based Services or call (800) 232-KIDS (5437). You will be sent a packet of information that describes the requirements for being approved as a foster parent, the different types of children, and the different types of foster homes.
What happens after I receive my packet of information? After you have received your packet of information, you should read through the information, and then attend an information meeting for families interested in foster care. This meeting provides families with information about the children in foster care and the general requirements for becoming an approved family with the Cabinet for Health and Family Services (CHFS), Department for Community Based Services (DCBS). This meeting will give you the opportunity to ask questions, as well as talk to someone who is an experienced foster parent. Contact the office of your local DCBS or call (800) 232-KIDS (5437) for times and dates of information meetings.
What are the qualifications for becoming a foster parent? To qualify as a foster parent, applicants must be at least 21 years old and are expected to have an income sufficient to meet their family's needs. Applicants may be married or single, and applicants and family members must be in good physical and mental health. This requires a statement from a physician. Applicants must meet the requirements for housing safety and space, provide at least three references, and authorize the release of criminal records to the Department for Community Based Services. This will include a check of the child/spouse abuse registry. Applicants must complete 30 hours of training to help them understand the needs of children in foster care.
What types of children are in foster care? Children placed in foster care are between the ages of 0 to 21 years. Many of these children have been abused, neglected, emotionally maltreated, exploited or sexually abused. Special needs children are those with multiple or severe problems, including medical disabilities, physical handicaps, special dietary needs, birth defects or chronic illness. They may also be mentally retarded as diagnosed by a qualified professional, have emotional or behavioral disturbances as evaluated by a qualified professional or have other circumstances or special needs that ordinary care does not meet.
What are the different types of foster homes? The different types of foster homes include:
Regular foster homes;
Medically Fragile Homes for children with unstable medical conditions;
Care Plus homes for children who have behavioral problems and have not been successful in regular foster care placements;
Emergency Shelters for children 12 years and older who are in need of immediate, unplanned placement for less than 30 days; and
Relative Foster Homes.
Who are SNAP kids? I see their pictures in the newspapers sometimes. The majority of SNAP (Special Needs Adoption Program) kids are considered hard to place or "special needs." "Special needs" can include white children over the age of 10; African-American children of all ages; members of sibling groups of three or more school-age children; and children with moderate to severe physical, mental and emotional disabilities.
Can I get financial help from the state to care for a foster child? Yes. Foster parents receive financial assistance in the form of a daily rate based on the needs and age of the child and the training and skill of the foster parent. The daily rate includes medical, mental health, school, diapers, day care, haircuts and other special expenses.
What is respite care? Respite providers are not foster parents but are essential because they help children and their foster parents by providing short-term relief or baby-sitting. Respite care may be provided by the hour, overnight or over a weekend.
What kind of training do I need to become a foster parent? The Department for Community Based Services provides training that meets the needs of foster parents. Foster parents are required to receive a minimum of six hours of ongoing training each year.
Can I foster only a specific age or need child? Yes. You decide whether to accept any child, or children, referred to you by the Department for Temporary Foster Care.
Can people on welfare become foster parents? Applicants will not be approved when their only source of income is foster care payments or anticipated adoption subsidy funds. Applicants will be expected to have an income sufficient to meet their present family needs and to insure that they can maintain a stable family home. Can I foster or adopt a relative, SUCH AS a grandchild? A child may be placed with a relative when it is in the best interest of the child. A relative foster home must meet the same requirements for training and ongoing approval as non-relative homes.
Once I become a foster parent, are there other foster parents I can contact for advice and support? Support can be found through the Kentucky Foster/Adoptive Parent Support Network; call 1-877-70HEART.
What Obligations do Foster Parents have? A foster parent’s obligations can include:
Arranging for child’s educational needs;
Providing the child with quality food;
Keeping the child’s clothes in proper condition;
Providing proper toiletry items for the child;
Cooperating with the Cabinet for Health and Family Services (CHFS) and the state and reporting any incident which affects the child’s wellbeing;
Allowing representatives from child services to enter the home and investigate formal complaints about the child care
Informing the CHFS about any changes in the household, for example when a foster parent gets married or a new person moves into the home; and
Recognizing and respecting the religious wishes of the parent.
Can a grandparent become foster care PLACEMENT FOR a child? Yes. Under the relative placement care options, grandparents are, if qualified, a proper foster care placement for children.
How can a grandparent become the foster parent of a child? If a parent is placing a child in foster care or the Cabinet is seeking to remove the child from the parents’ home, grandparents make sure that CHFS is aware that they are willing and able to serve as foster parents. A grandparent must meet all the requirements of a foster parent and must follow all the guidelines of the Cabinet for Health and Family Services (CHFS), but there is a preference for placing children with relatives whenever possible.
ONCE I AM MY GRANDCHILD'S FOSTER PARENT, CAN MY GRANDCHILD BE REMOVED FROM MY HOME BY CHILDREN’S SERVICES? Yes. The Child Welfare Agency can remove the child from your home when they believe that the child's health or safety is at risk or for any other reason. The agency must, however, give you notice ten days before the child is removed, advising you of the reason for the removal, and of your right to seek a review of that decision. If the agency believes that the child's health or safety is in danger, they can remove the child from your home immediately.
WHAT CAN I DO IF MY GRANDCHILD IS TAKEN AWAY FROM MY HOME BY THE CHILDREN’S SERVICES? If you are your grandchild's foster parent, you have the right to request a hearing to review the agency's decision to remove your grandchild from the home. If the agency believes that the child's health or safety is in danger, they can remove the child from your home immediately. If, however, they do not believe that the child is in immediate danger, they must give you written notice of their intent to remove the child from your home. The notice will tell you how to request a hearing. If you need assistance, contact your local legal aid office.
WHAT IS PERMANENCY PLANNING? Foster care is temporary. Permanency planning involves efforts by Child Welfare Agency to provide a permanent, safe and stable home for children, whether with their parents or through adoption.
Permanency planning may include:
Services offered to the family when the children are in foster care to correct family problems and to help reunite the family;
Services offered to the family to prevent foster care placement; and
Where the family problems cannot be corrected, the permanent placement of a child by terminating parental rights and freeing the child up for adoption.
WHAT IS THE ADOPTION AND SAFE FAMILIES ACT AND HOW DOES IT AFFECT ME? The Adoption and Safe Families Act (ASFA) is a federal law which was passed in 1997. The goal of this law is to provide safe, permanent and healthy homes for children in foster care. Some of the provisions in the law affect grandparents caring for grandchildren who are in foster care. Those provisions include:
All foster parents (and all adults over the age of 18 who live in their home) must submit to a criminal records check and finger printing;
Permanency hearings must be held for children in foster care to decide the children's long term goals, including: whether the children will be reunited with their parents or placed for adoption; whether termination of parental rights should be started; whether the children will be placed permanently with an acceptable relative; or whether another living arrangement should be found for the child;
Notice of all foster care court hearings must be given to relatives, as well as foster and adoptive parents, which gives them the right to voice their opinions to the judge;
The safety of the children in foster care is the main concern when deciding the child's permanency goal; and
Instructions for filing Termination of Parental Rights petitions (requests) for children who have been in foster care for 15 out of the last 22 months (except where the children are in. foster care with relatives).
WHAT DO GRANDPARENTS HAVE TO SHOW WHEN THEY WANT LEGAL CUSTODY OF A GRANDCHILD WHO IS IN FOSTER CARE? If grandparents want legal custody of a grandchild, they must show the court, at a hearing, that they would be appropriate foster parents who may want to adopt the child, and that they can provide a better adoptive home than the one chosen by the Child Welfare Agency responsible for the child. This is very difficult, especially when a child has been in foster care for a year or more and has become attached to the foster parent.
DO GRANDPARENTS HAVE THE RIGHT TO VISIT GRANDCHILDREN WHO LIVE WITH OTHER FOSTER PARENTS? Grandparents may be allowed to visit their grandchildren in foster care if they have already gone to court and have a visitation order. They have to request that the order be enforced and the court must find that granting visits to the grandparents will not put the child's life or health in danger. If grandparents do not already have a visitation order, they may be allowed to visit their grandchildren in foster care if the court decides to hear their visitation request, and decides that visits by the grandparent are in the child's best interests. The court must sign an order giving the grandparent formal visitation rights.
GUARDIANSHIP WHAT IS GUARDIANSHIP? Guardianship is a legal relationship between you and your grandchild granted by a court of law. In order to obtain guardianship you must go to court and prove that the parents are not able to care for your grandchild. If you succeed, you will receive "letters of guardianship." This means that the court has approved your request and that you now have the legal right to make decisions on behalf of your grandchild.
What is the goal of guardianship? The goal of guardianship is to provide protection, education, care, custody and decision-making for children when the court has determined that living with the parents and adoption is not in their best interest of the child.
What are the general issues in a guardianship situation? The issue in guardianship is to determine what is in the best interest of the child. There is no concern over the capacity of the child, only for the ability of the parents to provide appropriate care.
Where one parent is deceased, is the other parent automatically granted LEGAL custody of the child? Yes, the surviving parent is assumed to be the legal custodian of the child. To overcome this presumption someone must ask a court to find that living with the surviving parent is not in the best interest of the child.
Can a parent waive LEGAL custody of a child? Yes. A parent can waive legal custody of a child.
Who has the right to legal custody when both parents are deceased? When both parents are deceased, no one has right to custody, including any family members that may wish to raise the child. Any family members that wish to raise the child may seek legal custody, but ultimately the best interest of the child is the deciding factor on who will raise the child.
ARE GUARDIANSHIP AND LEGAL CUSTODY THE SAME? Generally speaking, guardianship and legal custody are very similar because both are ordered by a court and both give the caregiver the legal right to make decisions for the child. Guardianship is easier to obtain then custody. A custody order is harder to change then guardianship (but both can be terminated or changed by the court.)
The powers granted to a custodian or guardian may be limited by the court order, but frequently include authority to:
Make medical decisions on behalf of the child;
Decide where the child will live
Enroll the child in school
Act in the role of parent of the child in legal and social service matters
Claim the child for insurance or tax purposes
WHO CAN BE THE GUARDIAN OF A CHILD? Anyperson may ask the court to be appointed guardian of a child under age 18. The guardian does not have to be related to the child.
WHAT ARE SOME OF THE BENEFITS OF GUARDIANSHIP? Once you are your grandchild's guardian:
The parent of the child cannot take your grandchild away from you unless a court, after a hearing, ends your guardianship;
You will be able to decide where the child will live, and make decisions about your grandchild's medical care and education, without interference from the parents; and
The parents are still legally responsible for the financial support of the child (however, they may be allowed to visit them if they request visitation and the court orders it);
It is easier to obtain then custody.
IS GUARDIANSHIP PERMANENT? No. The rights and obligations of a guardian end when:
The child reaches the age of 18;
The child who is less than 18 years old gets married;
Whenever the court orders the guardianship to end.
HOW DO I BECOME A GUARDIAN? Any person can go to court to ask to be appointed the guardian of a child under 18 years of age. The parents must be notified whenever someone asks the court to be appointed guardian over their child. If the child is over the age of 14, the child can also ask the court to appoint or choose a guardian, and the child may voice his or her consent to the guardian who is chosen. The court will ask the child what is his or her preference for a guardian, and the court may consider the child's preference. Parents may also consent or agree to allow a grandparent to be the child's guardian.
As in legal custody cases, grandparents seeking to become their grandchild's guardian must first prove that there are extraordinary circumstances that make it necessary for the child to be placed in their care. If the grandparent can show extraordinary circumstances, the judge will decide who should be the child's guardian. In making that decision, the court will find out whether the person requesting guardianship has had a report of abuse or mistreatment of a child made against them and the outcome of that allegation. The court will use that information in making its decision.
DO THE RIGHTS OF THE PARENTS END IF I BECOME THE GUARDIAN? No. Unlike in an adoption, the rights of the parents do not end if you become the guardian of your grandchild. The parents are still responsible for the financial support of your grandchild and may be ordered to pay child support. The parents cannot take the child away from your home without first going to court, but if the court orders it the parents may be allowed to visit the child.
WHY WOULD A GRANDPARENT ASK THE COURT TO BE APPOINTED GUARDIAN OF A GRANDCHILD? A grandparent may want to ask the court to be appointed guardian of a grandchild if:
The child’s parents are unable to provide a safe and stable home for the child;
The child’s parents are dead or missing and someone needs to have the authority to make major decisions for the child;
The child's parents are abusing the grandchildren;
The child's parents are in jail, or addicted to drugs, or are otherwise not able to care for the children;
The grandparents are having trouble getting necessary medical care for the child and do not know where to find the child's parents;
The child has funds from an inheritance or as a result of a lawsuit or settlement, or owns property, and an adult is needed to make decisions about the child's financial affairs;
The grandparents need legal authority to enroll the children in school;
The parents are unable to supply a safe and stable home for the child.
WHAT DOES THE COURT CONSIDER WHEN DECIDING WHETHER TO GRANT GUARDIANSHIP TO A GRANDPARENT? When deciding whether to grant guardianship to a grandparent, the court will look at all of the circumstances, decide whether the parents are able to adequately take care of the child, and if not, then decide who will be appointed the guardian of the child based on the best interest of the child. In addition, the court will want to know the following:
Where the child's parents are;
Why the parents are not able to care for the child (remember, parents are the natural guardians of their children unless the court finds that they are not fit to be guardians or are not able to care for their children); and
Who the child is living with.
CAN A GRANDPARENT EVER BE THE GUARDIAN OF A GRANDCHILD IF A PARENT DISAGREES? Yes. A judge will have to decide whether extraordinary circumstances exist which make it necessary to allow guardianship of the children based on what is in their best interest. The court will appoint a grandparent as guardian only if the court believes that it would be in the best interest of the child.
CAN THE PARENT GO TO COURT AND ASK THAT THE GUARDIANSHIP END? Yes. A parent can go to court at any time and ask that the guardianship end. The court will decide whether the guardianship should end or continue after a court hearing.
AS MY GRANDCHILD'S GUARDIAN, MUST I PAY FOR MY GRANDCHILD'S SUPPORT? Yes. A grandparent who is the child's guardian is financially responsible for the grandchild's support. The parents remain responsible for the financial support of their children. You may be able to apply for public benefits on behalf of your grandchild, such as Family Assistance and Medicaid. If the child is eligible for these programs, you can obtain income and health care coverage for the child. The court may also order the birth parents to pay child support.
WHAT ARE MY RIGHTS AND RESPONSIBILITIES AS MY GRANDCHILD'S GUARDIAN? If the court appoints you as your grandchild's guardian of the person, you are responsible for the care of your grandchild as if you were the child's parent. You can make all decisions regarding your grandchild including decisions about your grandchild's medical needs, education and where you and the child will live. However, you will need to ask permission of the court to move to another county, another state, or out of the country.
If you are appointed by the court as the guardian of the child's property, you are responsible for that property and cannot waste, sell or destroy the child's property, without being held responsible for the damage or waste. You will also be required to report annually to the court about what has been done with the child's property and/or funds.
Most guardianship appointments are for both the person and the property.
CAN A GUARDIAN CONSENT TO NECESSARY MEDICAL CARE FOR A GRANDCHILD? Yes. A grandparent who is the grandchild’s guardian can consent to necessary medical treatment on behalf of the grandchild, unless the court order appointing the guardian says otherwise. There may be limits on some procedures without court approval.
AS THE GUARDIAN OF MY GRANDCHILD, CAN I DESIGNATE SOMEONE TO TAKE CARE OF MY GRANDCHILD IN MY WILL? No. Only the birthparents of a child or the child's adoptive parent can designate a guardian in their will to take care of their grandchild. Such guardians are called "testamentary guardians." While guardians cannot designate a successor guardian in a will, under many circumstances, a grandparent guardian can name a substitute guardian by filling out a document to designate a standby guardian. AS GUARDIAN OF MY GRANDCHILD, CAN I DESIGNATE SOMEONE TO TAKE CARE OF MY GRANDCHILD IF I BECOME ILL OR IF I DIE? Yes. Grandparents who are the legal guardians, legal custodians, or primary caretakers of their grandchildren can designate someone to be the legal guardian of their grandchild when they become too sick to care for the child or when they are going to die. A grandparent can do this by filling out a document to designate a standby guardian. HOW DO I FILE FOR GUARDIANSHIP OF A CHILD? Guardianship of children is filed in District Court. Talk to the court clerk for filing procedures in your county. You should talk to an attorney before you file to make sure that filing is the right thing to do.
WHAT IS ADOPTION? Adoption is the legal process of changing the legal parents of a child.
SHOULD I ADOPT MY GRANDCHILD? The answer depends on the circumstances of the birth parents, not on the desires of the proposed adoptive parents. Adoption is the last resort for the family law system, only to be granted when it appears that there is no hope that the birth parents will be able to supply a safe and stable home for the child.
WHAT MUST BE PROVEN FOR A CHILD TO BE ADOPTED? Before a court can order an adoption it must find that:
The birth parents are “unfit” to be parents; or
That the birth parents are willing to knowingly and voluntarily terminate their parental rights;
That adoption is in the best interest of the child.
WHY WOULD I WANT TO ADOPT MY GRANDCHILD? Adoption is permanent; it cannot be undone unless the legal process is flawed. Adopted children are treated in the law the same as children born to the adoptive parents. Adoption may make it easier (or possible) for you to add your adopted child to your health insurance. Adopted children are entitled to Social Security Benefits based on the adoptive parents’ earnings records.
WHY WOULD I NOT WANT TO ADOPT? Adoption is time consuming and expensive. It requires the assistance of attorneys with expertise in adoption (adoption should not be attempted without the assistance of an expert attorney.) Adoption terminates the right of the child to collect benefits or to inherit from the birth parents. The court process for adoption can be difficult in that it may require you prove very negative things about a member of the family to prove that the parents are unfit.
Chapter Two: Benefits
This chapter offers an overview of some of the benefits programs that grandparents may be eligible for.
SOCIAL SECURITY FOR CHILDREN CAN MY GRANDCHILDREN RECEIVE SOCIAL SECURITY BENEFITS? Maybe, children who are disabled may qualify for Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI) benefits, or Survivor Benefits if they qualify.
WHAT IF MY GRANDCHILD IS DISABLED? A child who meets the Social Security Definition of disabled is eligible for SSI from birth to age 18 if the family income and assets are within the limits of the program, and for SSDI from age 18 on if the child becomes disabled before the age of 22.
WHO IS DISABLED?
Social Security has a strict definition of disability for children under the age of 18.
The child must have a physical or mental condition(s) that very seriously limits his or her activities; and
The condition(s) must have lasted, or be expected to last, at least 1 year or result in death.
The definition of disability for a person age 18 or older is:
Based on an inability to work because of a medical condition, to be considered disabled:
The adult must be unable to work and because of a medical condition.
The disability must last or be expected to last for at least one year or to result in death.
To receive SSDI based on the earnings history of a parent, the disabling condition must start before the age of 22.
If you think that your grandchild is disabled, you should make an appointment and apply for benefits. If your application is denied, contact your attorney or local legal aid program to review the decision for possible appeal.
WHAT ARE THE DIFFERENCES BETWEEN SSI AND SSDI? To qualify for SSI a child must be under age 18 and live in a household that has very limited income and assets. SSI is very limited in the amount it pays. A disabled adult child becomes eligible for SSDI based on the earnings history of a parent, on their 18th birthday if they have a permanent disabling condition that begins before their 22nd birthday. SSDI has no limits on household income or assets. SSDI benefits are based on the earning history of the person they are based on and can be significantly higher than SSI benefits.
CAN MY GRANDCHILD RECEIVE SOCIAL SECURITY IF THEIR BIRTH PARENTS HAVE DIED? Probably Yes. 98% of surviving children, children who have lost a wage earning parent, are able to draw Social Security Benefits until they turn 18 or 19 if still in high school based on the earnings of the deceased parent. The rules regarding prior work experience are much more generous for survivor benefits then they are for other forms of Social Security. If one of your grandchildren’s parents is deceased, you should contact Social Security for more information.
Can a child receive benefits on the earnings record of a grandparent?
A dependent grandchild or step-grandchild may receive benefits on the record of a grandparent if the following requirements are met:
The grandchild's natural or adoptive parents are deceased or disabled:
At the time the grandparent became entitled to retirement or disability insurance benefits or died; or
At the beginning of the grandparent's period of disability which continued until he or she became entitled to disability or retirement insurance benefits or died.
The grandchild was legally adopted by the grandparent's surviving spouse in an adoption decreed by a court of competent jurisdiction within the U.S.
The grandchild's natural or adopting parent or stepparent must not have been living in the same household and making regular contributions to the child’s support at the time the grandparent died.
The grandchild must have lived with the grandparent in the U.S. before reaching age 18 and received at least one-half support from the grandparent for the year before the month the grandparent began receiving retirement or disability benefits or died.
THE TRANSITIONAL ASSISTANCE PROGRAM WHAT IS THE TRANSITIONAL ASSISTANCE PROGRAM? If you are taking care of your grandchild and you need financial assistance, you can apply for the Kentucky Transitional Assistance Program. You do NOT need a legal relationship to your grandchild, such as guardianship or custody, to apply for Family Assistance for yourself or your grandchild.
The Transitional Assistance Program provides cash assistance to low-income families with children under the age of 15 (or under 16, 17, or 18 if in regular full-time attendance in elementary, junior high, or high school equivalent or an equivalent level of vocational or technical school, or if the child is under age 18 and a high school graduate) to meet rent, food and other needs. However, the program provides assistance to families for only five years, and the program requires an adult applicant or recipient to register to work and develop a self-sufficiency plan in order to qualify or continue to receive benefits.
The Cabinet for Health and Family Services (CHFS), Department of Community Based Services (DCBS) is in charge of the Family Assistance Program statewide.
WHO IS ELIGIBLE FOR TRANSITIONAL ASSISTANCE? The following people are eligible for Transitional Assistance:
Adults who have low incomes and resources and who are part of a benefit group that includes needy children. When parents or adult relatives are eligible for Transitional Assistance for themselves and the children in their household, the family can get up to five years of benefits. This five-year limit is a "lifetime limit", meaning that once the five years are up, the family will not be eligible to receive any more Transitional Assistance. In addition, the adults in the home will be required to register for work and develop a self-sufficiency plan in order to receive assistance. An exception to the five year lifetime limitation exists for grandparents or other relatives (except for parents) caring for an eligible child who would otherwise be placed in foster care. If qualifying for this exception the caretaker relative must still register for work, unless the caretaker is over age 60.