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Grandparents and Other Relative Caregivers
A majority of all domestic adoptions are by relatives and stepparents. Sometimes a relative informally assumes custody of the child without involving child protective services. Many times, however, relatives receive custody of the child because child protective services and the court have removed the child from the birth parent's home because of abuse or neglect allegations. This information will explain the various ways custody can be obtained as well as financial assistance which may be available to relative caregivers.
Grandfamilies State Law and Policy Resource Center: www.grandfamilies.org
Grandparents for Children's Rights: www.grandparentsforchildren.org
Frequently Asked Questions
Q: Are grandparents/relatives entitled to receive preference in placement decisions?
A: Yes. States must consider giving preference to relatives over non-relatives so long as the placement is suitable.
Q: Who is considered a relative?
A: Typically, this term refers to relatives by blood, marriage, or adoption. Some states specify a required degree of relatedness. At a minimum, relatives typically include grandparents and aunts/uncles.
Q: What legal options do grandparents and other relative caregivers have?
A: The options available depend on your state, but may include the following (listed from most permanent to least permanent):
~Adoption: Unlike other permanency options, adoption severs all of the birth parents' rights and responsibilities. The relative caregiver becomes the parent in the eyes of the law and assumes all rights and responsibilities for the child. One advantage of adoption is that it becomes much easier to access services for the child such as insurance, etc. One disadvantage of this option is that the relative may lose some forms of financial assistance he/she is already receiving. However, if the child is considered "special needs" and has been adopted out of foster care, he/she may be eligible for a subsidy under the federal or state adoption subsidy program. "Special needs" typically includes children who are: over 12 years of age, part of a sibling group, minorities, or have special medical needs. In most states, relative adoptions are treated somewhat less formally than non-relative adoptions and may require only an abbreviated home study or none at all.
~Guardianship: Unlike adoption, guardianship does not sever the parents' rights and responsibilities, and the caregiver does not become the parent in the eyes of the law. Under this option, relative caregivers are generally able to access services on behalf of the child, but the parents could petition the court to end the guardianship at any time.
Some states provide financial assistance through subsidy programs which issue a monthly payment to the guardian. Subsidized guardianships are typically designed for children who have been in state custody and allow the relative to become the legal guardian of the child, thereby replacing the state in that role. After guardianship is granted, the state will issue a monthly subsidy to the guardian for the care of the child. The subsidy payments usually end when the guardianship terminates or when the child turns 18, although several states continue the subsidy until the child reaches age 21 or 22 so long as he/she is attending school.
~Legal Custody: Legal custody has a similar status to guardianship and the differences vary by state. A legal custodian generally has the following rights and responsibilities with respect to the child: the right to determine where and whom the child will live with; the right to make major decisions regarding the child's care, upbringing, education, and medical needs; and the responsibility to provide food, shelter, education, and ordinary medical needs.
~Kinship Care: When children are taken into state custody because of abuse or neglect allegations, many states prefer to place the child with a relative rather than in foster care with a stranger. Under kinship care programs, grandparents and other relative caregivers can receive financial assistance to help with the expense of caring for the child.
Financial assistance varies from state to state. Many kinship caregivers may be able to access Temporary Assistance to Needy Families (TANF) funds for the child only through the local welfare agency. The child may be eligible for Supplemental Security Income (SSI) if the child is physically, mentally, or emotionally disabled. Social Security may also be available for children under 18 years of age if their birth parent is eligible for a benefit due to retirement or disability, or if the birth parent was previously insured and is now deceased. Medicaid is available for children in most states if their income is at or below the poverty level defined by the state. Most states have also established health care programs for young children.
~Stand-by Guardianship: These laws allow terminally ill parents to designate a stand by guardian to assume the day-to-day care of a child without terminating the parent's rights. The guardianship is triggered by a specific event such as death, mental incapacity, or physical debilitation of the parent.
~Medical & Educational Consent: Some states allow caregivers without legal custody or guardianship of a child to complete documentation granting the caregiver authority to consent to a child's medical treatment and enroll them in school.
Q: Who must give consent in relative adoptions?
A: The birth mother and father (if he has properly established paternity) must consent to adoption of their child, even in relative adoptions. Consent is not required if a parent's rights have been terminated by a court order. Please refer to the FAQ document on Consent for more detailed information.
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