Lenexa Estate Planning and Probate Attorneys

Parenting a Junior, As a Senior

Raising kids is hard, but raising grandkids?

Grandparents raising their grandchildren are nothing new; however, the issue is increasingly a focus of the public eye. Since 1980, there have been dramatic increases in the number of children living with and being cared for by their grandparents. Grandparents may resume a parenting role for a variety of reasons, most of which revolve around problems related to the child’s parent. Increasing numbers of grandparents are providing permanent care to their grandchildren as a result of divorce, substance abuse, child abuse and/or neglect, abandonment, teenage pregnancy, death, HIV/AIDS, unemployment, incarceration and mental health problems. The reasons why grandparents raise their grandchildren are varied, but all result in a great deal of responsibility for the grandparent who takes on the task.

Legal Custody vs. Non-Legal Custody

One common way to categorize grandparent caregivers is to divide them into two types. First are the custodial grandparents. These grandparents have legal custody of their grandchildren; they provide daily care and decision making tasks. Typically, severe problems existed in the child’s nuclear family. The focus of this type of care giving is on the grandchild and providing them with a sense of security.

The second type of grandparent caregivers are the “living with” grandparents. These grandparents provide daily care for their grandchildren, but do not have legal custody. The child’s parent may or may not live in the home. These grandparents focus on providing an economically and emotionally stable environment for the child, and often on helping the parent. Because the grandparent does not possess legal custody, he or she has no way of protecting the child from an unsuitable or dangerous parent.

The legal issues that grandparents raising their grandchildren must cope with depend on the type of care they are providing. Legally recognized relationships open to grandparents are Powers of Attorney, Guardianship, and Adoption.

Power of Attorney for Medical Care

If you are a grandparent or other adult providing daily or frequent care for a child just to allow a parent to be employed, it would be wise to have a document that allows you to obtain emergency medical care in the event that the parent cannot be immediately available. This is a simple document, signed before a Notary Public that authorizes the designated individual to obtain medical care for a designated child. It can be limited to emergency care only.

Powers of Attorney for Child Care

If you are caring for a child fulltime, around the clock while a parent is on active military duty, working away from the child’s residential placement, or absent for extended periods of time, you may need to have more extensive authority. A Powers of Attorney can be crafted to allow you to obtain routine as well as emergency medical care, enroll the child in school and authorize consent slips for educational purposes (field trips, discretionary testing, individual educational plans, etc.), and to apply for public assistance programs. This is a consideration for many families, as both parents may agree that a grandparent is the best placement resource for a child while both parents are otherwise unavailable. This document may be amended or revoked as best suits the needs of the family.


When parents are truly unable to care for their children in their own homes and extended placement with a relative is considered for more than a few months, guardianship is often the best plan. Guardianship actually allows the caregiver to step into the shoes of the parent and have the same authority that the parent would have. This may be simpler if both parents consent; however, this matter must be determined by the Court. In order for a Guardianship to be established, a petition must be filed with the court. At that time, a Guardian Ad Litem (GAL) will be appointed for your grandchild. It is the GAL’s responsibility to meet with your grandchild and report to the court what s/he feels will be in your loved one’s best interest.

Once all documentation has been prepared and filed with the court, all interested parties must receive notice. As such, if one parent is absent and has had little or no involvement with the child, they must still be notified and given a chance to “step up to the plate” and care for the child. In many cases, the caregiver and the parent who has been caring for the child do not want to contact or communicate with the absent parent.

A contested Guardianship would require that the person seeking to be named as the child’s guardian prove that the opposing parent is “unfit” as defined by case law. Because the right to raise our own children is constitutionally protected, there is a high standard of proof required to prevail if both parents do not agree to the guardianship. Guardianship may be voluntarily ended when the parent or parents are able to resume fulltime responsibility for the child’s care. Guardianship may also be ended by legal action when a parent files a motion to withdraw the letters of guardianship and shows the court that they are now ready, willing and able to resume care of the child.

Grandparent Adoption


Parents who consent to Guardianship because they cannot adequately care for their children will not necessarily consent to Adoption of the child by the grandparent-guardian. This is a permanent arrangement and it effectively terminates the parent-child relationship. Adoption should never be lightly undertaken. It is also true; however, that young children who have been raised by grandparents for a period of years may need the permanency of adoption to experience security. Psychologists sometimes refer to the long term caregiver as an “emotional parent.” In some cases, the child may experience adequate security simply from having a home with grandparents who are reliable and predictable. When the caregiver or Guardian is constantly challenged by a parent who neither assumes responsibility nor relinquishes it, children sometimes develop emotional problems. Occasionally, adoption is recommended to allow a child the security of knowing for sure where they will live and with whom.

Benefits of Guardianship

Although the research is focused primarily on the difficulties children and grandparents face in these circumstances, there are also benefits. It has been found that children being raised solely by their grandparents have fewer behavioral problems and are better socially adapted. To many of the grandparents raising their grandchildren, their sacrifices are more than worth it. It is clear that despite the problems, most grandparents derive satisfaction from acting as parents to their grandchildren and simply need the legal tools necessary to secure their abilities.

Malissa L. Walden, Esq. ©2008

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