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Sadie Says: Guardianship or custody? What grandparents should know

Sadie Says

Q: I’m taking care of my granddaughter, her mom and dad left her with me. Do I have legal rights to her now? What should I do?

According to statewide AARP statistics, 81,112 children in Pennsylvania live in homes where a grandparent is solely responsible for them. Grandparents are taking them to the doctor, registering them for school, signing field trip waivers and so much more. It is important for a grandparent to know their legal rights as they navigate these important tasks. So what do you have to do, and what can you do? Below are frequent questions from grandparents.

Q: Their parents aren’t involved, so do I get their rights automatically?

A: You do not automatically get legal rights by being the primary caretaker of the child. Even if a biological parent is completely absent and does not provide any financial support, they still have parental rights until a court terminates them.

Q: What are guardianships?

A: A guardianship allows a biological parent to grant another person the legal powers of a parent, but without giving away their own rights. A key condition in a guardianship document is that the biological parent can terminate it without having to go through a court process. Normally there is a provision in the guardianship that a biological parent may terminate it by giving notice in writing to the guardian. Additionally, a parent may pick and choose what powers to give a guardian; for instance, a guardianship can grant the right to make medical decisions but not the right to change school districts. Your family’s individual needs will determine the specifics.

Q: How do I get guardianship of my grandchild?

A: A guardianship document needs to be drafted which identifies the parents, the child, specific powers granted to the guardian and how the parent can revoke it. Often health care providers and schools want specific language addressing major medical or educational decisions. The guardianship must be signed by the parent and two witnesses over the age of 18. The guardian cannot be a witness.

Q: What if it’s an emergency?

A: If no guardianship document has been signed but the biological parent was admitted into a drug or alcohol treatment program, or needed emergency medical help due to drugs or alcohol, you can file with the court a petition for temporary guardianship that may be granted by a judge.

Q: How is custody different from guardianship?

A: A custody order must go through the court and be signed by a judge. The grandparent then may receive physical and legal custody in whatever form the judge deems appropriate. Once a custody order exists, the biological parent must file for a modification to change it.

Q: Are there prerequisites for a grandparent to file for custody?

A: You need to have “standing,” which means you have a basis to get involved. There are a few ways to get standing. You can be “in loco parentis” to the child, meaning you’ve been acting in the place of a parent for a period of time. If you are not in loco parentis you can still have standing if your relationship with the child began with parental consent or a court order, you are willing and able to care for the child, and one of the following circumstances exists:

1. The child was determined dependent by Children and Youth Services.

2. The child is at risk due to parental abuse, neglect, incapacity or substance abuse.

3. The child lived with you for at least one year but then was removed from your home by their parents.

Lastly, you may have standing if the biological parent is deceased. Remember, it is always best to consult with an attorney before filing a custody action to review the specific details of your situation.

Custody matters are complicated, especially for a grandparent, and there is no one size fits all method.

If you do not have the financial resources for a private attorney you may call North Penn Legal Services at 877-953-4250 9 to 11:30 a.m. and 1:30 to 4 p.m. Mondays to Thursdays, or visit www.northpennlegal.org to determine if you qualify for free legal services.

— Sadie Says is provided by the Lycoming County Health Improvement Coalition.

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