Your Child or Your Grandchild?

An ever increasing phenomenon that I have come across in my law practice is grandparents wanting to provide for their grandchildren. Grandparents come to me frustrated, confused, and broken because their grandchildren are in state custody and they are being forced to choose between their grandchild and their own child.

Unfortunately, many grandparents that I have encountered in my practice have faced resistance from state agencies when they have tried to take on the responsibility of raising their grandchildren because of a parents inability to do so. The reality is grandparents are often forced to choose between supporting their own child or caring for their grandchild. A choice that is far too often minimized by professionals in the child in need of care system.

If grandparents choose to support their own child they are accused of enabling. Grandparents are very often faulted for their own child's poor choices. Faced with these obstacles despite Kansas state law and family service policy and procedure manuals requiring state agencies and their contractors to turn to family first, grandparents wishing to be considered as a resource option are far too often snubbed. Social workers tend to rationalize that a grandparents alleged enabling behavior will continue in their rearing of their grandchild and the "mistakes" the grandparents made in raising their own child will be made again this time around.

If grandparents decide to support their own child in hopes of helping him/her recover from his/her own current plight and get him/her into a position where he/she is able to raise his/her own child, grandparents are often condemned. The best chance that these parents have at recovery is when they turn to their support network for help, their family. Social workers assigned to these parents are often overworked and underpaid and do not have the time, energy, or commitment to offer these parents the support they need to fully recover. But if grandparents offer their child support and that parent subsequently fails and does not successfully recover or does not recover quick enough and the court system finds the parent to be "unfit" the grandparents loose their grandchild to the state.

If a grandparent cuts their own child off they are heartless, and they risk losing him or her. If they support their child they are "unfit" to raise their own grandchild. This phenomenon that grandparents face is far too often minimized and most be more thoughtfully considered by social workers when making placement decisions.

Grandchildren Don't Wear Out Grandparents

New research shows caring for grandchildren generally does not have dramatic and widespread negative impacts on grandparents' health. Instead, some grandparents are already ill before they begin caring for grandchildren and others don't experience a health change.

The study involved over 13,000 grandparents between the ages of 50 and 80. The research contradicts a common belief that the stress associated with caring for grandchildren exceeds the capacity of aging grandparents. However, scholars involved in the current study found that even in cases where grandparents provide primary care for their grandchildren, their health is generally not undermined by the responsibility.

How To Rescue Someone Else's Child From A Different State

Imagine the fear, anger and concern over losing a four year old child who had lived with you since her birth. The family who came to my office were beside themselves with worry when the child's mother sent her daughter to another part of the country to live with a man who is not her father.

The child's aunt, uncle and grandmother came to our office. Four weeks ago, the mother took the child from their home and sent her to another part of the country. She now lives with the father of her half siblings.

The case demonstrates how child custody lawyers strategize solutions to problems. First, we began with the facts. The child is four years old. She has lived mostly with her aunt and uncle for most of her life. Her mother has many children, but none of them live with their mother. Some are in foster care.

Next, we had to analyze child custody jurisdiction under the Uniform Child Custody Jurisdiction Act. Too many lawyers and even judges simplify and misunderstand child custody jurisdiction. For example, some mistakenly believe that the court where the child now resides has jurisdiction. Others think that the state where the child lived for the past six months keeps jurisdiction until the child lives somewhere else for six months. The accurate rule differs in ways that, though technical, make the difference in the life of a child.

After establishing jurisdiction, we had to consider various ways for a non-parent to take custody of a child. We considered private child in need of care actions, paternity actions, and grandparents' visits. We advised our client on the benefits, risks, speed and costs of each option. We even had to consider the reputation and experiences of particular judges to know how a court might rule.

Ultimately, we brought all of our sophistication and experience to bear for the sole purpose of rescuing a small child from a dangerous circumstance.

U.S. Supreme Court Declines to Review Grandparents' Visitation Rights

Last Monday the U.S. Supreme Court declined to review an award of grandparent's visits by the Pennsylvania Supreme Court. The case concerned a conflict between a father and the mother of his deceased wife. The Pennsylvania state court ordered the father to allow visits between his son and the maternal grandmother.

This decision continues a long standing debate. On one side, parents assert their constitutional rights to raise their own children without state interference. On the other side, grandparents and child advocates argue for the rights of children to pursue their best interests even over the objections of their parents.

Parents won a major victory in 2000. In that year, the Supreme Court found a Washington state statute had been applied unconstitutionally. The Washington statute unconstitutionally allowed a court to substitute its judgment for the decision of fit parents regarding grandparents' visits.

Twelve states have no provision for grandparents' visits. The two states where I practice allow for some grandparents' visits in certain circumstances. In Kansas, grandparents can get court ordered visits if they can prove that they have a substantial relationship with their grandchild and the visits serve the child's best interest. In Missouri, courts can order grandparents' visits, but not if the parents are married to each other.

Should courts require parents to allow their children to visit their grandparents? Please post your comment.