Grandparent Guardianships

Many grandparents are raising grandchildren.  A recent report conducted by U.S. 2010, A Research Project on Changes in American Society founded by Brown University in the Russell Sage Foundation, corroborates a recent study by the Pugh Research Center that showed that 7.7 million U.S. children – 1 in 10 children – were living in the same household as one of their grandparents in 2011. In many cases that means living in the grandparents' home. In 1997, the Census reported that of the grandparents who maintain homes for their grandchildren, 55% of grandmothers and 47% of grandfathers are not yet age 55. In addition, 19% of the grandmothers and 15% of the grandfathers were under the age of 45.

During the last few years, in my law practice, I have noticed more and more grandparents calling me to establish guardianships of their grandchildren. A guardianship must be established according to the procedure in the Indiana Code. A “Guardian” is a fiduciary appointed by the court to be a guardian who is responsible as the court may direct for the person or the property of an incapacitated person or a minor. A “Minor” is any person who is less than 18 years of age and who is not emancipated as a minor. By its very nature, a guardianship is temporary. 

A guardianship is usually established because a Parent does not have the financial resources to take care of the Child or is under a certain life stress such as an addiction.  The Parent requests the Grandparent to establish a guardianship. As the Parent matures, they become financially stable and then requests that the Grandparent terminate the guardianship. By this time, the Grandparent may have developed a parental bond with the Child and does not want the guardianship to terminate. 

Unfortunately when a Grandparent raises a grandchild, they often start to unintentionally feel that they are the parent and not the grandparent. Thus, when the Parent is in a position to terminate the guardianship, the Grandparent fights the termination.  A court fight then ensues.  This Court battle is stressful for everyone, including the Child.  To begin the termination proceedings, the Parent must petition the court to terminate the guardianship. This court case causes the Parent and Grandparent to incur attorney fees and court time. Often, the contentious termination of the guardianship causes a breakdown of the parent-grandparent relationship. This breakdown has a negative impact on the Child as well.

There are times that I have suggested to a grandparent that they adopt the grandchild either before or after the establishment of the guardianship. An adoption is not temporary. If, at that time, the parent is in dire financial straits or under an addiction, and the grandparent requests the parent consent to the adoption, the parent may consent. If, however, the parent recovers from the addiction or their financial picture improves, the chances of a parent consenting to the adoption decrease. Indeed, the Court, at that time, is less inclined to continue the guardianship. If you are a grandparent raising a grandchild and you want to make the relationship permanent, the only way to make it permanent is by adoption. 

If you are a grandparent with a guardianship over a grandchild, remember that the guardianship is a temporary relationship. When the parent asks that the guardianship be terminated, it is best not to fight the guardianship but to step back and accept the grandparent role. You can continue to support the parent and the child by being an involved grandparent. In addition, your relationship with the parent will probably be on a more solid footing.

Article by Tamie Jo Morog

Law Offices of Kirtley, Taylor, Sims, Chadd & Minnette, PC

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