KNOW YOUR RIGHTS: Grandparent & caregiver custody
Know Your Rights is a Legal Aid Society educational series that provides helpful information on a variety of relevant topics. This issue, we talk GRANDPARENT & CAREGIVER CUSTODY
Here’s what you need to know:
Written by Legal Aid Society Attorney Grace Chambers.
Over 96,000 Kentucky kids live in kinship care – 9% of all children in the state (the highest in the nation). Many of these children are being raised by their grandparents or a caring adult like a teacher or pastor. Without the proper legal status, many caregivers and kids face barriers to good health, educational opportunities, and stability.
If you are a caregiver and have a question regarding custody of the kid(s) in your life please contact Legal Aid Society’s Custody and Visitation Hotline at (844) 673-3470.
TOP 5 Things to Know!
1. Grandparents (or any caregiver who is not the biological parent) can go to court to get legal custody of their grandchild(ren) if:
In the past two years, their grandchild has lived with them (and not their biological parents) for at least six months if the child is under 3 years of age or lived with the grandparents for at least 1 year if the child is over 3 years of age.
AND
During this time, the grandparent has been the child’s primary caregiver and financial provider. This means they’ve been doing all the things a parent normally would for their child (think taking them to doctor’s appointments, attending parent teacher conferences, etc.). The grandparent (or non-biological parent caregiver) cannot be co-parenting with the biological parents. This does NOT mean the biological parents must have completely abandoned their child.
2. Grandparents who meet these requirements may file a “de facto custody case,” which we’ll refer to here as a “grandparent custody case.” This is a court case they must file on their own and does not refer to Dependency, Neglect, or Abuse cases (aka CPS cases). There are a number of forms the grandparent must fill out and file with the Family Court Clerk in order to begin their custody case.
3. In grandparent custody cases, the grandparent becomes the legal custodian (aka de facto custodian) of their grandchild. This gives them basically the same legal status as a biological parent. Grandparents can ask the Judge to give them sole custody of their grandchild, or they can ask to share joint custody with the biological parents. Sole custody and joint custody refer to who makes the decisions for the child, not who has physical custody of the child. Grandparents can also ask the Judge to order that the parents pay them child support and to set a visitation schedule for the parents to see their child. Grandparent custody cases do NOT terminate the biological parents’ parental rights—these are different types of court cases. Instead, a grandparent custody case makes the grandparent the legal custodian of the child, along with the parents.
4. As long as the grandparent meets the legal requirements, it does not matter whether the biological parents want the grandparent to have custody rights to their child. The Judge decides whether the grandparent qualifies as the legal custodian (“de facto custodian”) based upon the law and individual circumstances. Other issues like child support and visitation are decided by the Judge based off of what they think is best for the child.
5. Besides legal custody, other options for grandparents include juvenile guardianship and grandparent-visitation cases. The biological parents can also give grandparents or other caregivers the authority to make medical and school decisions for their child by signing a Power of Attorney form. .