Issues when Grandparents Become Parents
by Ursula Adler Falk & Gerhard Falk
There are several legal and financial issues that relate to the assumption of parental responsibilities on the part of grandparents. These legal issues arise from the several ways in which these responsibilities may be met. One of these is the informal arrangement resulting from the abandonment of a child by her parents in favor of the grandparents. Such an abandonment permits the parents to resume their legal right to the guardianship of the child at any time. This means that the grandparents who are taking care of the child have no legal standing to do so and are therefore not eligible to receive medical care for their grandchild unless they pay for such care themselves. In some states the specific consent of parents must be obtained before the public health law will allow doctors to perform any procedure on a child. In an emergency, some hospitals will provide treatment to a child without the consent of parents, although hospitals largely require payment in advance of treatment, either in the form of cash or using an insurance card.
Grandparents who cannot make informal arrangements for medical treatment must obtain legal guardianship or custody to safeguard the child.
School enrollment presents grandparents with another legal problem. Like many states, New York permits anyone who is the "custodian" of a child to enroll the child in school. "Custodian" includes persons other than the parents who are caring for a child whose parents are dead, ill, or incarcerated, or whose whereabouts are unknown. In some states parents may delegate some of their responsibilities, such as medical care or school enrollment, to someone else by signing a consent form detailing the responsibilities so delegated. In California a parent may authorize a grandparent or other caregiver to enroll a child in school and authorize school-related medical care. In Washington , D.C. , a parent or legal guardian may authorize another person to consent to medical, surgical, dental, developmental screening, and/or mental health examinations or treatments.
In states such as New York , which do not authorize the practice by statutes, a written statement from a parent giving a third person the power to take certain actions on behalf of the child is often effective. Even in the absence of a written statement, a nonparent caregiver is often able to obtain needed medical care or enroll the child in school by explaining the situation and documenting her relationship to the child.
In every state an order of custody gives a person the legal right to the physical possession of a child, although parents have a presumptive right to custody. That means that a parent does not need an order of custody to be in control of his or her own children. This issue, adjudicated in 1972 in Stanley v. Illinois , was reinforced in 2000 in Troxel v. Granville, in which the U.S. Supreme Court affirmed the right of a parent to be free of the interference of the state.
Whenever a nonparent files for custody of a child and one of the child's parents objects, the nonparent must prove that both parents are unfit to be in control of the child. It is not sufficient to argue that it is in the best interests of the child to be supervised by a nonparent. A nonparent who obtains custody can make day-to-day decisions about the care of the child, although a nonparent does not control the child's property nor does he assume financial responsibility for the child. One example of this arrangement is the code of Ohio , but other states have similar laws.
Children who are abused or neglected by their parents may be placed under the guardianship and custody of the state official charged with the protection of children. Children who have been removed from their homes are usually placed with relatives or in foster homes. In most states relatives may become foster parents; and in New York a child must be placed with a relative before he is placed with strangers. Such relatives must be informed about the "kinship foster care system" and be given the opportunity to apply to become a kinship foster care parent. Those accepted into the system are paid by the state for their services. Because many grandparents know nothing about these benefits, many grandparents raise their grandchildren without the financial support the "kinship foster care system" could give them.
If a relative is approved as a kinship foster parent, the child is eligible for kinship foster care payments and Medicaid. Kinship foster care payments include payments to meet the food, clothing, shelter, daily supervision, school supplies, personal, and special needs of a child. Since foster care payments are much higher than public assistance benefit levels, kinship foster care appears much more attractive to low-income grandparents than public assistance can ever be. Legally, children in foster care are in the custody of the bureaucrats who are charged in each state with the protection of children. Since these bureaucrats seldom know anything about the children in their charge, it is not unreasonable to say that their "custody" is only academic, perfunctory, and uncaring. Unfortunately, the grandparents of children in the "custody" of government agencies have no authority to consent to medical treatment or make any other decisions the guardian or custodian is normally entitled to make. Payments are not available to all grandparents, only to those whose grandchildren were subject to abuse or neglect and who were placed with the grandparents by an agency authorized by the parent or guardian. Most states view foster care as a temporary measure allowing plans to be made to either reunite the child with his parents or promote the child's adoption.
Adoption severs all rights and responsibilities of the biological parents, and the adoptive parents become the child's legal parents. This means that the adoptive parents make all decisions concerning education, medical care, and support for the child. In most states the adopted child inherits from the adoptive parents but not the biological parent.
If the biological parents do not consent to the adoption, their rights can be terminated in a legal proceeding by proving neglect, abandonment, or mental illness. The definition of "mental illness" is, of course, arbitrary, as Thomas Szasz has shown. The diagnosis of "mental illness" is made by psychiatrists. Szasz explains in his influential book The Myth of Mental Illness that psychiatry is not a branch of medicine, calling psychiatry and mental illness a "double impersonation." It is, therefore, entirely possible for a parent to lose her rights to her children through the pretenses of psychiatry.
Adoptive parents become financially responsible for their adopted child and possess all parental rights and responsibilities. This also applies to grandparents who have adopted a grandchild, so these grandparents must meet all the financial needs of the grandchild.
In those cases in which the grandparents have accepted responsibility for more than one grandchild, the burden may become overwhelming. Some grandparents who are already retired must go back to work to meet the financial needs of their grandchildren. Other grandparents use public assistance and other sources of income to make the support of their grandchildren possible. To help in these situations, former president Bill Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. That law eliminated the Aid to Dependent Children Program and instead created the Temporary Assistance to Needy Families (TANF) program. This program provides block grants for states to use to provide cash benefits to poor families with children. Under TANF, states have far more discretion to decide how to distribute benefits than was the case under the old Aid to Dependent Children law. Therefore, benefits vary from state to state and even within one state. TANF is not an entitlement, so not all needy children will be helped, particularly since there is a five-year limit per adult-headed household on the receipt of these benefits. Therefore, grandparents raising grandchildren may find themselves without federal money after five years. This does not mean that a state cannot provide assistance beyond five years, and some states have decided to assist indigent adults and children by giving them vouchers instead of cash.
The Personal Responsibility and Work Opportunity Reconciliation Act requires that any adult seeking to qualify for assistance must engage in work or job training no later than twenty-four months after first receiving assistance. The act requires that states must impose sanctions on recipients who refuse to go to work. States can also require that recipients engage in community service after receiving assistance for two months. If all these requirements are applied to grandparents seeking assistance in raising grandchildren, then a large number of grandparents cannot receive any assistance because they are too old to get or hold a job.
Grandparents can also apply for food stamps for themselves and their grandchildren. Food stamps are distributed to households rather than individuals. This means that a child who may be eligible for food stamps might not receive this aid because the resources of the grandparents are considered in determining the food stamps allocated to that household. Therefore, many grandchildren receive no food stamps or very few.
Supplemental Security Income (SSI) is a program designed to help those who are disabled and have an income below the poverty threshold. In some states, such as New York , grandparents who receive SSI benefits are penalized for having grandchildren in their house, as the presence of grandchildren results in fewer benefits allocated to the grandparent than if he lived alone.
Medicaid is a government program that provides comprehensive health-care coverage for low-income people. Many grandparents and grandchildren who have a low income and few resources may qualify for Medicare. If children alone are applying, their grandparents' income need not be considered, nor do grandparents have to have custody or guardianship in order to apply for Medicaid for the grandchild.
Housing is another problem that confronts many grandparents who assume care of grandchildren. Many poor grandparents have only small apartments, not large enough to accommodate a grandchild. It is often difficult for such grandparents to find affordable larger homes. Some grandparents live in housing built exclusively for seniors with the understanding that children are not allowed to live there. Furthermore, a child living in a senior housing development would be deprived of the company of other children and would feel totally out of place in such a situation. There are also landlords who can restrict the number of occupants of a rented accommodation, although discrimination against families with children is prohibited by federal law. Those grandparents who live in public housing must notify the management when an additional person has moved into their apartment.
These difficulties are added to the legal issues that the acceptance of a grandchild creates for grandparents. In sum, then, grandparents who include abandoned grandchildren in their households need a great deal of help in doing so unless they have the money and the resources to deal with all these issues alone. The fact is, however, that those who are most often faced with the challenges of surrogate parenting are the poor, who can least afford these burdens.
About 4 million American children are now living with their grandparents. This number is slightly higher than the number of children born in the United States each year. Because the parents of the grandchildren now living with grandparents abandoned their responsibilities, these grandparents must deal with the issue of blame for their adult children's behavior. Although trapped in a situation they did not cause, these grandparents are often blamed by relatives and outsiders for the behavior of their children. In addition, they generally blame themselves, wondering what they have done or should have done with their own children so as to prevent the difficulties their own children are experiencing, which led to the abandonment of their grandchildren. If their children are in prison, on drugs, or are alcoholic or otherwise impaired, parents may well blame themselves. There are also those grandparents who place the full blame for their circumstances on their children. In both cases grandparents and grandchildren must talk to each other about the parents, who are truly responsible for their children but have abandoned them.
Psychotherapists have developed a technique called contextual family therapy (CFT), designed to help grandparents raising grandchildren in crisis. This technique allows grandparents to describe and discuss the impact that parenting grandchildren has had on them and on the children involved. Children who rely on grandparents generally undergo "intense emotional and behavioral adjustments." In plain terms, this means that many of these children will test the limits of authority and/or push grandparents away because they feel that others have abandoned them and that this may happen again. Children who have been abandoned feel grief, guilt, anger, fear, anxiety, and embarrassment, even as they hope for their parents' return. Many suffer from excessive eating or sleeping disorders; others engage in "clinging" or in regressive behavior. Some of these children have been sexually abused, been exposed to pornography, or observed a parent with various partners, leading to sexual "acting out" on their part. Many abandoned children often want to contact their parents, although this is almost always a useless effort.
Grandparents are generally unable to understand the irresponsibility of their own children, who have left the little ones in their care. Many of the parents of these children are not only unwilling to assume their responsibilities toward their own children, they are also unwilling to acknowledge the help given them by their own parents. Many grandparents find, then, that their own children are using them to shirk their responsibilities even as their grandchildren blame them for the misconduct of their parents. It is the purpose of contextual family therapy to deal with all these issues involving three generations whose lives are inextricably tied together.
Excerpted from Grandparents: A New Look at the Supporting Generation by Ursula Adler Falk and Gerhard Falk. Copyright © 2002 by Ursula Adler Falk and Gerhard Falk. All rights reserved. Excerpted by arrangement with Prometheus Books. $21. Available in local bookstores or call 800.421.0351 or click here.