What's in a Name? Defining and Granting a Legal Status to Grandparents Who are Informal Primary Caregivers of their Grandchildren

• DOI: http://doi.org/10.1111/fcre.12075
• Author: Kathleen Meara
• Published date: 01 January 2014
• Date: 01 January 2014

STUDENT NOTES

WHAT’S IN A NAME? DEFINING AND GRANTING A LEGAL STATUS

TO GRANDPARENTS WHO ARE INFORMAL PRIMARY

CAREGIVERS OF THEIR GRANDCHILDREN

Kathleen Meara

The number of grandparents raising their grandchildren informally is increasing in the United States. Without legal recognition,

grandparents face problems consenting for their grandchild’s educational and medical needs and receiving government

financial assistance. Although many of these grandparents live on a fixedor limited income, cur rent government programs are

either not applicable or insufficient to provide financial support for grandparents raising grandchildren. Some states have

attempted to provide a legal status for grandparents who are primary caregivers, but state solutions are both inadequate and

varied. This Note proposes that all states adopt a de facto custodianship statute to create a legal status for grandparents

informally raising their grandchildren so they can provide for the child’s needs and receivefinancial assistance. The statute will

protect the parental presumption by setting a high standard for de facto custodians and will preserve a temporary opportunity

for the child’s parents to reassume their parental duties. If the court finds that a grandparent has met the de facto custodian

standard, then the grandparents will have legal standing to seek custody of the child.

Keypoints

• 2.5 million grandparents in the United States are primary caregivers for their grandchildren.

• Current forms of legal recognition for grandparents raising grandchildren do not allow grandparents to consent in all

medical and educational settings.

• A model statute is proposed for all states to adopt that would allow grandparents legal recognition to adequately care

for their grandchildren.

• Model statute is constitutional because it gives preference to parents and requires grandparents to prove by clear and

convincing evidence their ability to seek legal recognition.

Keywords: Absent Parents;Custody;De Facto Custodian;Grandparents’ Rights;Primary Caregiver;and Psychological

Parent.

I. INTRODUCTION

After Charles and Kerri Hernandez divorced in late 2000, Kerri was awarded custody of their two

small children and moved in with her mother, Janice Ausburn.1Less than a year later, Kerri was

struggling with drug addiction and decided to leave her two children with Janice.2From that time

forward,Ker ri undertook no parental responsibilities and waslargely absent from the children’s lives.3

For roughly six years,the children lived with Janice.4Janice provided a home for the children and took

care of their emotional and financial needs.5While Charles paid some child support to Janice, he was

not consistent and his contact with the children was sporadic.6In 2008, Charles and Kerri came to an

agreement that Charles would take over custody of the children and Kerri would receive limited

visitation.7They submitted their custody modification to the court without informing the court that the

children had been residing with Janice for the previous six years.8When Janice learned of the custody

modification and Charles’ plan to take the children from Janice’s home without her knowledge or

consent, Janice filed a petition for custody of the children.9Under the applicable Idaho statute,10

Correspondence: kathleenmeara04@gmail.com

FAMILY COURT REVIEW,Vol. 52 No. 1, January 2014 128–141

© 2014 Association of Familyand Conciliation Cour ts