The ever-shifting American family structure is, and will continue to be, a major area of sociological and legal study. In 2014, the Census determined that 2.6 million grandparents were responsible for raising their grandchildren. A significant cause of this is the rise of illegal drug use, specifically heroin. Due to heroin’s effects, which include severe drowsiness and mental cloudiness, and its high likelihood of a lethal overdose, addicted parents become unable to care for their children.
Rather than have the child sent through the foster care system, grandparents sometimes step in and raise her or him, despite the hardships of doing so at an advanced age. Physical limitations, emotional exhaustion, and dwindling finances are serious concerns, but so are legal custody issues-can a grandparent make medical decisions for the child? Can a grandparent register the child in school?- create additional challenges, especially when multiple parties make a claim for the child.
How much custody and input a grandparent may have depends on the circumstances. Is the care of the child temporary (until the parent overcomes the addiction) or permanent? If the parents are still in the picture, do they want formal visitation rights? Was Child Protective Services or the police involved?
Also, there are two types of custody that contain different sets of rights and responsibilities. Physical custody involves the day-to-day care of the child, while legal custody involves the right to make major legal decisions for the child (such as school enrollment and the issuance of health insurance). But without a court order granting legal custody, a grandparent with physical custody alone can’t make major legal decisions for the child.
For full legal and physical custody, grandparents must turn to the courts. In New Jersey, the Best Interests of the Child test is still used to determine who will have primary custody of children of divorce or a decision that one or both parents is unfit. Using this test, a judge will decide whether the grandparent is able to best care for the child, taking in factors such as financial stability and access to extracurricular activities.
If a grandparent doesn’t want to get wrapped up in the sometimes lengthy process of custody in the courts, there are some alternatives. A grandparent may be granted a temporary power of attorney to make decisions concerning whatever issues are listed in the document. In that case, the parents maintain their full rights and can revoke the power of attorney at any time.
Another possibility is for a grandparent to get kinship foster care of the child, if the child was removed from the parents’ custody by the state. Kinship foster care only gives physical custody and is temporary – the grandparents are subject to the same standards and evaluations as other foster families. They will also, though, get payments from the state to help manage the extra costs.
The most permanent, comprehensive option available to grandparents is adoption. Here, the grandparents get all parental rights and responsibilities and the parents are unable to later request custody. Because of the permanency of adoption, this option is best when the parents truly are unable to work through their drug dependency and pose serious risks to their children’s safety. Loree Varella is a graduate of Rutgers School of Law, Newark and collaborated with me on this blog. She was Associate Editor of the Rutgers Computer and Technology Law Journal and Managing Research Editor of that publication.