United States census data shows that more than 2.3 million grandparents are raising their grandchildren. While relying on grandparents to help care for children while a parent works has been a tradition for decades, the number of grandparents having to take over all parenting duties for their grandchildren is on the rise. The reasons a parent may not be able to raise their children are usually complicated and sensitive and can include physical abuse, substance abuse, mental health issues, incarceration, and even the death of a parent or parents.
Our New York family law and elder care attorneys discuss what grandparents must know from a legal perspective if they need to step in and raise their grandchildren as their own.
Temporary vs. Permanent Custody
One of the first things to consider is whether or not being in charge of your grandchildren is temporary or if it needs to be permanent. For purposes of the law, New York State considers temporary to be six months or less.
For example, if the children have only one parent and that parent becomes temporarily unavailable, but the plan is for the children to be returned to the parent at some point, you only need temporary guardianship. However, obtaining legal guardianship is important when forms for school and medical information must be filled out by someone who has been granted legal responsibility. Having the children in your physical care does not give you the legal right to sign forms on their behalf.
The Department of Social Services may have removed the children from the home and attempted to place them with a relative while the parent was unavailable. This is called temporary custodial rights or having custody of the children. If you are in New York, it’s important to work with a family law attorney if you plan to have temporary custody. They can assist you with the necessary documents to make you legally able to sign forms and make decisions on their behalf, such as a caretaker authorization affidavit and power of attorney.
If you need to have your grandchildren with you permanently, you’ll need to pursue either legal guardianship or adoption. Both of these remove the rights of the parents and award permanent custody of the children to the grandparent(s). Guardianship gives you the legal right to sign documents and make decisions for the children; the adoption process legally makes the kids your own, with you listed as their actual parents, just as if you adopted other children.
Guardianship is typically temporary, for periods of no more than six months. Either a parent returns to being in charge of the children, or, once the child turns 18, the guardianship is ended. Adoption means you are legally considered the parent of the children for the rest of their lives. These decisions need to be made carefully, considering all options for the present and the future.
Protecting Your Assets
When grandparents have to make these kinds of hard choices, it’s almost always a difficult time emotionally. Working with a lawyer who has significant experience in elder care law is important, so they can advise you about the best way to protect your assets, such as placing them in a trust.
Many grandparents don’t consider that when they become legal guardians and custodians of minor children, their assets may be at risk, including real estate and retirement funds such as social security or pensions. Your belongings and assets are referred to as an “estate,” no matter how small or large the assets are. Creating an estate plan is important, especially if you are taking over care of your grandchildren, so arrangements are made regarding the care of the children if you pass away, protection of any inheritance they may receive, and addressing the distribution of your assets after you’re gone.
Challenges of Raising Grandchildren
Also known as “kinship care,” becoming a legal caregiver for your grandchildren is often a difficult and selfless decision. In New York, “kin” can refer to direct blood relatives of the children and can include grandparents, aunts and uncles, great-grandparents, siblings, and cousins. But it can also include people such as godparents or other non-relatives who are close to the child.
Obtaining custody or becoming a guardian of your grandchildren isn’t just about filing legal paperwork. You have to consider the emotional state of everyone involved and whether or not you are physically and mentally up to the task of taking care of minor children.
The Long-Term Physical and Emotional Commitment
In many cases where grandparents become guardians, older people who thought they were done with parenting and may have already been enjoying their retirement must return to the world of buying school supplies and clothing, packing lunches, attending parent-teacher conferences, and taking kids to practices and games. Being in charge of your grandchildren requires long-term emotional and physical commitment to look out for their best interests until they are adults.
If you need to step in and parent your grandchildren due to family circumstances, it’s important to consider all options so you make the best decision for you and the children and to understand whether you want temporary custody, guardianship, or to adopt them.
In many cases, life changes quickly. There is often no other good option but for the grandparents to step in and take over raising their grandchildren. You need a law firm that can guide you through your options during a difficult time and ensure the best choices are made for everyone involved.
New York Family Law and Elder Care Law Firm
The Alatsas law firm has the experience you need to navigate all aspects of becoming a custodian for your grandchildren, whether temporarily or permanently. We understand this can be an emotionally charged decision for everyone, and we’ll work with you to make sure you understand the ramifications and to fill out and file all necessary legal forms for custody.