Grandparents
There may come a time in a grandparent's life when he or she is faced with the prospect of having
to raise a grandchild. Sometimes, it is due to the death or incarceration of a child, or deployment
of an enlisted child. However, more often than not, drug addiction of a child is the reason why a
grandparent must assume the role of parent to a child placed second to drugs.
Unfortunately, in the Central Valley, the methamphetamine tidal waive has taken its toll on many
families, causing many parents to either leave their children with someone else or have them taken
by Child Protective Services. Other times, grandparents, bewildered by their own child's actions,
step in to protect their grandchildren who may be threatened by drug-induced neglect.
What Kind of Legal Authority Do I Have Without Court Intervention?
Many grandparents are shocked to find out that under California law, they have little to no legal
authority over their grandchildren. This means, even if a grandparent has the consent of a parent,
without the proper court order, they cannot enroll their grandchildren in school, seek medical
attention, take them to therapy, or even pick them up from day care!
Custody Orders or Guardianship?
This is a simple question with a very technical answer. First of all,
"custody orders" refer to orders one would typically obtain in family court via
a family law actions such as a divorce, or Uniform Parentage Action (where the parents of a child
weren't married). Some grandparents may pursue orders through the parents' existing divorce, or
UPA action after being joined and filing a motion to obtain full custody of the grandchildren.
Many county local rules require a grandparent to start with the family law action if there is an
existing one before seeking a guardianship. This is not true for all counties, and there are
exceptions to the rule where this rule applies.
A "guardianship" is an order one would typically obtain via the probate court. Here, the grandparent
can request a temporary guardianship which may be granted on an emergency (expedited) basis and then
ultimately obtain a permanent guardianship. A temporary guardianship ship is appropriate where the
child is under an imminent threat of harm if left under the care of his or her own parent.
A guardianship will grant to the grandparent almost all of the rights of the child's parents. The
grandparent (or grandparents of you choose to be co-guardians) becomes the "guardian" of the
children and now has the legal authority to enroll the child in school, pick him/her up from
daycare and take them to the doctor for shots, medical attention, psychiatric care or simply
a well-child check-up.
Deciding between custody orders or guardianship depends on a plethora of factors. The best
way to know which way to go is to speak with a local family law attorney who is familiar
with both custody orders and guardianships. A grandparent in this position needs to consult
with a local attorney who knows the judges, local rules of court, as well as the local court
policies and attitudes towards these issues.
Can I Share a Guardianship with Someone Else?
Yes, a grandparent may request co-guardianship with his/her spouse, another adult child, or even
a non-family member. However, one must choose a co-guardian carefully. There will undoubtedly
be many, many difficult, complex or even mundane decisions regarding the children. In order to
avoid more conflict in the future with your co-guardian, it is wise to choose a co-guardian with
whom you share the same life principals and regard for the children.
Can I Get Financial Help With the Kids?
Yes. Many times, a grandparent can request child support (and even discretionary attorneys' fees)
from the parents of the children in the case of family law custody orders. One thing to consider,
however, is just how feasible it will be to receive support from the parents if they are unfit to
have them in the first place due to drug addiction or other impairments. Many grandparents run
into a dead-end when requesting support directly from the children's parents. In the case of a
guardianship, the guardian(s) may request public assistance for the children in the form of TANF,
food stamps, and low-cost child care.
What Do I Do Now?
Do it right and do it right away! Go see a local attorney right away who can listen to your story,
and devise the best plan of action that will enable you to accomplish your goals and protect your
grandchildren.