In today’s society, it is not unusual to find children living with grandparents, aunts, uncles or even friends. Sometime the children’s biological parents are in and out of the children’s lives, maybe even more out then in. These circumstances can be temporary, but they are often permanent or grow into permanent arrangements. In these situations, the natural parents’ rights continue unless or until some action is taken to change that.
When the arrangement becomes more than temporary, a caretaker should begin to consider whether to legalize the relationship to allow the provision of health insurance, to enroll the child in school and to have the authority of a parent in the absence of the biological parents. Sometimes it is even important to protect the child from the natural parents. The law strongly protects the rights of the natural/biological parents, but non-parents have authority under certain conditions to establish a permanent, legal relationship to a child.
The law as it relates to these issues is intended to balance parental rights, which are considered fundamental rights that are highly protected, with the best interests of children. If parents do not voluntarily relinquish their parental rights, the parental rights must be terminated, which is no easy task. There are other options, however, short of proving parental unfitness.
Non-parents caring for a child have two primary options to legalize the relationship. Those options are: 1) custody; and 2) guardianship. For either option, one significant hurdle often prevents the non-parent from proceeding: that hurdle is the legal right to initiate a custody or guardianship proceedings – otherwise known as “standing”. Standing is the legal concept that establishes a person’s right to bring a cause of action into the court system.
In a very general sense, standing for a nonparent to seek custody is established when a non-parent is in physical possession of the child. Obtaining “possession” of a child needs to occur, at least initially, with the consent, acknowledgement or acquiescence of the natural parents, and that possession must be more than temporary.
While custody establishes the right and authority of a non-parent to care for a child and to act for the child as a parent would, it is not absolutely permanent. If circumstances changes, a change in custody can be granted, for instance giving custody back to a natural parent or parents.
Guardianship is a more permanent arrangement. For guardianship, standing must be established in one of the following ways: 1) the natural parent voluntarily relinquishes physical custody of the minor, 2) the natural parents consent to the appointment of a guardian, 3) the natural parents fail to object to the petition for guardianship, or 4) the strong presumption of the natural parents’ ability to care for the child (fitness) is rebutted (thereby terminating the parental rights).
Each of these methods of establishing standing requires a highly factual determination and must be considered in light of all of the relevant facts and circumstances. Notice must be given to both biological parents, and the biological parents may fight the effort to establish guardianship. Standing is much more easily established with voluntary placement of the children in the custody of someone else, acquiescence in the placement or actual consent to the guardianship. Having to prove parental unfitness and terminating parental rights can be very difficult, even with much less than model parents.
Even after standing is established, the right to custody or guardianship must still be proven. Standing only gets one’s foot in the door. The right to custody or guardianship must be made in consideration of additional factors that can be best summed up as what is in the child’s best interests.
Anyone who is willing to care for another’s children, and to take custody or guardianship of them, is certainly worthy respect. It is no small thing to accept that responsibility. It can also be frustrating when it seems that the law makes obtaining custody or guardianship difficult. It is difficult for good reason – to protect against the arbitrary and capricious removal of children from parents.
Before making a decision to seek custody or guardianship of a child, a person should discuss the situation with a knowledgeable attorney and obtain an opinion whether standing exists or does not exist. Without standing, nothing else can happen. Knowing what is required to establish standing can be helpful in taking actions that may establish standing so that this hurdle can be jumped if or when the time comes that seeking custody or guardianship of a child becomes necessary or appropriate.
If you find this article informative and helpful, please like us on Facebook, connect with us on LinkedIn or add us on Pinterest to receive notices of new articles, resources and updates.
I would like to find out more info if I might have a case for gaurdianship of my granddaughter. Her father and her have lived with me since she was a year old. Her father doesnt want to prusue custody of her but my daughter and i are her main caretaker and provider. Her mother only takes her at her convience, she is unemploeyed, and homeless, she couldnt stay with her mother at other grandparents cause grandpa a reg sex offender. I own my own home, Ive had the same job for almost 14yrs. Please send me more information.
Grandparents need to have “standing” to be able to obtain custody. We would need more information to assess whether you have or might have standing, but it is a good possibility. Please feel free to contact us through the webpage or call (630) 406-5440.
My son and his ex girlfriend had a child together and were never married. She didn’t put my son on the birth certificate and has no intention of doing so. My Granddaughter was born on November 4, 2015. She has been living with my husband and I since February 2016. Now all the sudden her mother wants to leave the state with her and go to Texas. She hasn’t bought anything for her since April 2016. She says we have no rights since she refused to get my son on the birth certificate. She didn’t want the child and was talking about either getting an abortion or giving her up for adoption. My daughter talked her into giving my son a chance to be a father. Now her step father is dying and wants her to come there with the child. She still doesn’t want her she only wants to take her down there so she can let her mother and stepfather raise her. Like we are doing. I need to know what my rights are. And what my sons rights are
Grandparents have rights only in limited circumstances, but you may qualify based on the few facts you have provided. The fact that she placed the child with you since February is likely enough to give you standing to assert a right to guardianship or custody, but it ultimately comes down to the child’s best interests. It doesn’t matter whether she put your son’s name on the birth certificate, if he is the father, he has parental rights. He may need to petition to have his paternity established, which can be done through blood testing. If she is intent on moving, however, you should not wait to consult with an attorney. You should do that soon and get more detailed advice on where you stand and what you should be doing.
I am having issues with my daughter in and out of jail right now shes on home monitor (house arrest) her and her son soon to be 2 are living with her grandmother (my Mom) because I live in the same state but not county and the court wont allow her to stay with me while shes on home monitor.
She has movent 5 days a week which allows her to work go to school or anything in that nature, in which neither she does.
All she does is go out drink heavily (alcohol) with her son being exhausted. Always coming back later then her curfew.
Dosent spend time with her son, when shes home all she does is talk on the phone and text all day. My grandon is doing things for her attention to reach out to her. But she pays him no attention.
I have been taking care and suppprting my grandson every since hes been in the world.
I am just tired of her miss treating my grandson not to mention she drags him out in the cold daily. When hes sick im the one that has to buy his medicine.
I am sick of her way and want custody of my grandson. His father dosent do anything for him as well never signed his birth certificate. All I want is to have custody of my grandson before he ends up in DCFS custody.
In order to obtain custody, you must have standing. You should schedule an appointment with an attorney in your area who is experienced in family law and has a good reputation to determine if you have standing; and if you don’t currently have standing, you should discuss what you can do to establish standing.
Before I ask for your help, let me give you a little background into my current situation. In 2013, my (step) grandson’s parents asked me and my husband to become the guardian of our grandson. My stepson was going to join the military and his ex-girlfriend could not care for our their child at the time. We took guardianship in May 2013 and in July, my stepson was in a bad accident preventing him from going into the military. Obviously he recovered, got on his feet and asked to have his son back, to which we agreed in January of 2015. He got married (to a different woman) in October of 2015 and had a new child with this woman in early June 2016. (Not pertinent, but relevant in this situation). Before they had their child together, my stepson asked his son’s mom to take in our grandson without revising the previous order so that he wouldn’t have to pay child support. At first he was taking him every weekend and allowing us to keep him on the weekends he had his son. In August, this abruptly stopped for no reason whatsoever.
Fast forward to this past Friday….My grandson’s mom contacted me asking to take our grandson for the weekend so she could sort some things out with her new husband. She had asked my stepson if he would take their child and he refused, so she came to us (haven’t spoken to her since 2013). On Saturday, she sent me a text stating that she has come to the decision to let our grandson stay with us on a permanent basis since we raised him almost 1/2 his life and he is seemed happier with us than with her. She is offering to stand up in court to help us gain guardianship because she believes my stepson and his new wife do not want our grandson living with them since my stepson hasn’t seen him for over 24 hours in the last 2 months. My problem lies in not knowing if we stand a chance of being granted guardianship again if one of the parents (my stepson) is not voluntarily signing the papers. (We still have our grandson and it is now Tuesday). We have no clue how to begin the process either.
You have been good grandparents! Standing is the issue, as you probably know from the first time around. I would hesitate to offer any advice without reviewing the court Order in place and gathering more details. You should make an appointment with a reputable attorney who does family and discuss it. In the meantime, the longer you have your grandchild the better in terms of gaining standing, if you don’t already have standing.
I like to know how I can get my granddaughter her mom got her taking by dcfs and her dad is in jail do to his x girlfriend that is the mother of my granddaughter the dad is my son her mom did not really want her and she really did show it after my son went to jail all her mother cares about is men and now we are having a hard time to even seen her dcfs took her on February 4 and her it is February 26 and we still have not seen her we like to raise her in a loving family that will give her want she need wish is love so can anyone please give me some answers so her mother don’t get her back we don’t want her to go back to all that
You should meet with an attorney who has experience in dealing with grandparents rights and find out what would be necessary for you to obtain guardianship or custody of your grandchild.
My fiancé was granted full custody of his son because of the mother abandonment but he’s a truck driver and his son is living with the grandparents that wants temporay legal guardianship to be able to have the rights to enroll him in school and offer health insurance. Would he be able to reverse this once his job transition him to a local route and should it be custody or guardianship?
Thanks
There are number of issues and potential issues here, and answers and advice would be highly dependent on additional facts. He would do well to set up a consultation with a reputable attorney who is experienced in family law who can ask specific questions and talk him through all the issues.
I am wanting to seek guardianship of my Granddaughter. Her father, my son passed away this past Feb.20th. She is living with her mother and her mothers boyfriend. There is drinking going on 7 days a week. Her mother goes out on a Friday night and doesn’t come home sometimes till following Monday. This happens quite often. My granddaughter hops from one relative to another, mostly me for babysitting. They have even gone off and left her alone at times. She is 10 years old.
Grandparents’s rights in Illinois are dependent on a number of factors. You should meet with an attorney who can map out the requirements for you and help you develop a strategy.
i want to be given guardianship for my grandson, his father(my son) is in prison and wont be released until 2020, my daughter in law is trying to raise 3 children, 17-13-13 twin boys. one of the twins is giving her problems, refusing to go to school, hitting her,threatening to run away etc, he want to come and live with me in Florida. He would be attending 8th grade. My other son lives with me(uncle) who is 55 years old, and would be a great influence on this young man. we have aleays been extremely close since this boy has been born. what is the process in Illinois
You have described a scenario in which you may have standing to seek custody or guardianship of your grandson. I would recommend that you see an attorney who has a good reputation in your area who handles family and/or guardianship.
My fiance and I are trying to get custody of his nephew. . His brother passed away and shortly after DCFS was involved with the child’s mother. Before DCFS was able to take the child the mother signed over custody to my finances parents. They have had the child a year and a half now and aren’t able to do it anymore. We are trying to figure out if they have legal rights to sign him over to us as the mother is still not able to take the child back. Or in this situation can they legally sign a short term guardianship agreement until we are able to get a court date to make it permanent?
Based on the circumstances that you describe, it sounds like your fiance’s parents and the two of you can probably work together to have one or both of you become the adoptive parents or guardians. You will need an attorney to help you work through it. I suggest they you make an appointment with an attorney who handles adoptions and guardianship and talk through what needs to be done.
I need some help..
Our grand daughter ( from my step daughter) has lived with us since she has been 1 and a half MONTHS . She will be 3 in May. We pay for everything and have helped her through every hurdle a baby goes through with love and patience. Her mother only gets her for a visit about every 2 months ands it’s only for a day , maybe a night. She admits she cant handle her! She was born addicted to drugs!! We have never received any type of help for her,including with clothes ( which we could care less ) Our problem is that every time we don’t say yes to her , she threatens to come get ” HER f***ing kid!”. Sometimes we can talk her out if it..sometimes she gets her in a frenzy and our grand daughter is who has to deal with it.
What legally can we do to protect our precious grand daughter? We have no say so far in anything, but we have total PHYSICAL custody( I say physical because she has lived with us her entire life, but it’s not legal physical custody). it is turning into an emergency. Can you help?
If you are in Illinois, you likely have standing to seek legal custody or guardianship based on the few details you have provided. You should talk with an attorney and learn how you would go about that.