In unfortunate circumstances, parents may be unable or unwilling to care for their children. However, grandparents or stepgrandparents may be hesitant to pursue or attain legal custody of their grandchildren because of the family relationship or because they don’t want to upset the parents. For grandparents who might become or are becoming caregivers for their grandchildren, understanding the following legal arrangements is important:
- Informal or kinship care: Grandparents can care for grandchildren without court orders with the consent of parents. Parents of the children may not be present in the home or may be present but unable to care for the grandchild.
- Legal custody: This gives grandparents rights in relation to their grandchildren’s care. A parent voluntarily can relinquish custody of a child to a grandparent or a court can order it.
- Guardianship: Guardianship of a child is appropriate only when the parents are deceased or their parental rights have been terminated or suspended. With guardianship, grandparents accept day-to-day responsibility for the children.
- Foster care: In foster care, the child remains under state control.
- Adoption: Adoption is a permanent arrangement and grandparents become the legal parent in every way. The legal relationship between the grandchildren and their parents ends.
Getting health care and enrolling children in school can be challenging for grandparents who do not have legal custody or guardianship of their grandchildren. Grandparents who are caring for grandchildren often cite the following as critical needs: legal assistance to obtain legal custody or the authority to enroll their grandchild in school and give consent to medical treatment.
My child has died and I believe my grandchildren would be better off living with me than with the surviving parent. Can I get custody?
North Dakota courts view parents as the natural guardians of their children. The parents have the primary right to custody. This right can be taken away only in a legal proceeding in which the parent’s ability to provide care is shown to be so inadequate that the children’s welfare, health and safety are compromised or some other extraordinary circumstances exist.
An example of an extraordinary circumstance is if a grandparent has had custody of grandchildren for a substantial length of time and has become the children’s “psychological parent” (a person thought of as the parental figure) during that time. But even then, a court would return the children to the custody of the parent unless it found that restoring parental custody would cause serious harm to the children.
How can I get medical care for my grandchildren if I haven’t established a legal relationship?
North Dakota has a medical consent law that includes a list of those adults who may be consulted when a minor needs medical treatment. The list begins with the child’s parent or legal guardian. Grandparents who have maintained significant contacts with the child also are listed among those who may provide informed consent if a parent or legal guardian is not available. This law may be helpful to kinship caregivers.
If a parent is in jail, grandparents can execute a power of attorney for a child giving the attorney-in-fact the ability to make decisions on the child’s behalf for up to six months. If the parent has abandoned the child, the grandparent could contact the county or juvenile authorities for an order that places the child legally with the grandparent on a temporary basis. This option more easily allows the grandparent to obtain financial assistance through the Temporary Assistance for Needy Families (TANF) program or child support.
I am supporting my grandchildren. Neither parent is contributing. Can I get help?
Parents are responsible for supporting their children. If grandparents furnish the support, they may go to court to try to make the parents pay back the funds. However, to recover the money, grandparents must show clearly that they did not intend the support to be a gift.
The parents’ responsibility to support their children remains intact even when they divorce. Divorce decrees set an amount for child support according to a child support schedule. This amount is the extent of the parents’ financial duty and the court will not allow recovery of any excess amount.
Even if the divorce decree does not set a definite amount of support owed, the responsibility for supporting the children still belongs to both parents. If one or both of the parents do not fulfill the support responsibility, the other parent or a third person can try to recover the amount of support that should have been provided.
In certain limited circumstances, Temporary Assistance to Needy Families (TANF), which is a federal public assistance program, may provide financial assistance on behalf of children who are cared for by a relative, such as a grandparent. The children must be residents of North Dakota and not yet 18 or full-time students who expect to complete high school before age 19.
Children whose parents have died, abandoned them or are unable to care for them because of physical or mental disabilities may be eligible for TANF. The caretaker must show he or she needs funds to provide proper care for the children. In North Dakota, 4,006 grandparents are raising grandchildren and receiving public assistance.
How can I be certain that money I save for my grandchildren’s education will be used for that purpose?
Depending on the amount involved and how complicated you are willing to make things, several options are available. The simplest is to keep the money yourself and make it available directly.
You could use a formal trust with someone acting as trustee. This usually requires the services of a lawyer. It is the surest way to get what you want because the trustee is legally obligated to follow your wishes as set in the trust agreement. Check with your lawyer for other ideas that best suit your needs.
How can I get health insurance for my grandchildren?
If your grandchildren don’t have health insurance, find out if your employer will allow you to add them to your policy. If not, find out if they qualify for your state’s free or low-cost Children's Health Insurance Program (CHIP) or the federal Medicaid program. Both of these programs vary from state to state, but most insure children and teens up to age 19 for health care, medicines and hospital visits. The Early Periodic Diagnosis, Screening and Treatment (EPDST) program is part of Medicaid, and offers well-baby visits with normal screening, tests and treatments that children would get if they went to a doctor for regular visits.
In most states, you do not need to have legal guardianship of your grandchildren to apply for health insurance for them. But a few states will consider your income when they decide if your grandchildren qualify for insurance. To find out if your grandchildren may be eligible for CHIP or Medicaid and apply:
- Go to Benefits QuickLINK and answer a list of questions. You’ll get a report that tells you what programs the child is eligible for and provides links to the forms to apply. Talk with a local social worker or someone at the clinic or your doctor’s office about applying for CHIP or Medicaid.
- Visit the Insure Kids Now website (www.insurekidsnow.gov/) or call toll-free at 877-543-7669.
What do I need to know about enrolling my grandchildren in school?
Legal custody is required in North Dakota to enroll a child in school. Grandparents can contact their local school district’s administrative office or their local school to find out how to register the child and what paperwork they need. Caregivers may need birth records, health records or previous school records. Some states have laws that allow relative caregivers to enroll the children they are raising in school. These laws often are called “education consent” laws, but they may be called something else in your state. A power of attorney or a guardianship also would be sufficient to enroll a child in school. An abandoned child’s grandparents may want to seek the juvenile court’s help to get something done quickly.
The parental rights of my child have been terminated (by death or court order) and my grandchildren have been adopted by a stepparent. Will these grandchildren inherit from me when I die?
Under North Dakota law, your grandchildren most likely will inherit from you because the adoption by the spouse of a biological parent has no effect on the relationship between the children and either biological parent. However, to be certain, you should identify your grandchildren by name in your will. Your grandchildren then will benefit under your will whether you die residing in North Dakota or another state. Perhaps the greatest challenge in the coming years will be the adaptability of family law to the increasing number of nontraditional families.
