Grandparents want to be grandparents but sometimes they need to step in and try to get guardianship of a grandchild. In this blog post I explain the process you might go through to obtain guardianship of a grandchild.
You are 60 years old and you’re thinking that it’s time to focus on yourself, now that your kids are grown and on their own. You’ve reached a point where you can start socking away as much money as possible and plan for the day when you retire. The problem is your daughter has an addiction.
Since her early teens, she has been in and out of substance abuse rehab centers. She didn’t finish high school and is unable to work. She can’t seem to find a long-term relationship. At various points in her life, she’s been sober, only to relapse once again. She became pregnant and had a son four years ago. She has been unable to establish paternity.
Your daughter struggles with raising her son. To provide stability for the child, you agree to let them move in with you. Unfortunately, your daughter cannot overcome her drug addiction. Consequently, you are raising your grandson. Now he is four years old and you would like to get him into a daycare setting. When he reaches five, he will enter kindergarten. His pediatrician tells you that you need to have legal authority to consent to his medical care because the school will want to know that he has his vaccinations before he starts. What can you do to help your grandson? You must meet with an experienced probate attorney. (Keep in mind that custody is a family court matter involving the parents of the child. Guardianship is a probate court matter involving anyone else who is not a parent of the child. )
The attorney advises you that a probate court can only appoint you as guardian if the court removes your daughter from that position. Before you meet with your attorney again, you have several conversations with your daughter about the need to make you guardian. Your daughter agrees and consents to her removal. Your attorney prepares a Petition for Removal of Parent as Guardian that indicates your daughter consents to the removal. The attorney also prepares an Affidavit which alleges that your grandson has been living with you for the past few years and that you’re not aware of any other pending legal proceedings that relate to this Petition. Your lawyer also prepares a second Petition to have you appointed as guardian. This Petition alleges that it is in your grandson’s best interests to have you appointed and because your daughter has consented, she must sign this document as well. In addition, your lawyer attaches a certified copy of your grandson’s birth certificate as required by the court.
The attorney files the paperwork with the probate court and you ask for a hearing date. What happens next? The court contacts the Department of Children and Families and they assign a social worker to your case. The social worker interviews you, your daughter and your grandson. She also inspects your home to determine whether appropriate accommodations have been made for him. She does a criminal background check on everyone. She checks the sex offender registry and other relevant databases and ultimately concludes that your daughter should be removed as guardian and that you should be appointed as permanent guardian in her place. This report is then filed with the probate court and the judge reviews it.
Finally, you appear at the hearing, present your testimony and the judge confirms that your daughter has consented to her removal as guardian. The court then finds that it is in the best interests of your grandson to appoint you in that role. The court issues a written decree that you can use to provide care for your grandson and now he can finally start school with you as the decision maker.
The facts described above present just one possible scenario under which a grandparent can obtain guardianship of her grandson. The fact patterns are endless and depending on those facts, a lawyer might advise his client differently than what he advised in this particular case. The thing to keep in mind is that these situations are real and they exist in everyday life and most people don’t know how to proceed. If you have questions related to guardianships, please don’t hesitate to call the probate attorneys at Cipparone & Zaccaro, PC. We’d be happy to help you with your unique situation.
