Frequently Asked Questions
Recently, states have enacted laws providing certain other “rights” to grandparents. Such “rights” are usually about very limited legal situations, for instance, notice about neglect proceedings or custody. In New York, a special statute governs grandparents who seeking custody of children who are living with them. Yet, no state’s laws treat grandparents as the natural guardians of their grandchildren, and there is no grandparent right to assume custody when parents cannot parent.
For other relatives, in certain limited circumstances laws may provide family members more “rights” than strangers. For instance, federal law will pay a special public assistance grant to blood relatives who are caring full time for children, and state and federal laws insist upon a search for relatives when children are removed from their parents.
These statutory rights are just part of a larger discussion about families having a “fundamental right” to raise children when parents are unavailable. In other words, the extension of parental rights to family members who’ve assumed parental duties or who want to assume such duties. The U. S. Supreme Court has declared that under certain circumstances when relatives have assumed parental duties, such a transfer of rights does occur. However, few courts have chosen to provide parental rights to family members
For court procedures, the standards in disputes between parents and non-parents are the same for both guardianship and custody (both Surrogate’s Courts and Family Courts have jurisdiction over “guardianship of the person”). The standard is that both procedures must find an “extraordinary circumstances” before deciding the best interests of children. But the procedural investigations differ. However, only guardianship proceedings must include reports on criminal record checks and child abuse registries.
Regarding statutory powers, there are many laws that declare what “parents and guardians” can do. Most of these do not include legal custodians. Instead, they define certain decision-making powers only for parents and guardians, including medical decision-making.
In practice, guardianship and legal custody have almost identical authority. Even the exclusion of medical authority is usually ignored. However, incidences do occur where a medical provider balks at accepting the authority of a non-parent legal custodian.
Bottom line, the legal distinctions are often inconsequential and do not effect caregiving. For more on the authority of non-parents, see various legal fact sheets, including birth certificates, passports, and school enrollment.
A full grant pays between $300 to $500 per month for one child. For each additional child the grant increases between $100 and $200. However, the calculation of the grant amount is subject to a number of factors, including charges for room and board and other sources of income for the child. It’s best to seek help in making application, so you can truthfully optimize the amount of the grant and avoid delays in getting it. There are also federal social security benefits. See fact sheet on our website.
While non-parents are legally obligated to inform the local department about the whereabouts of the parents, there is an opportunity afforded to claim an exemption. If the caregiver believes that they or the children in their care may be subject to physical or emotional harm then they may ask to be excused from providing information about the parents. See our legal fact sheets for more information.
If a relative is identified, the court may place the child with the relative. Courts have a variety of ways to facilitate the placement ranging from temporary custody to kinship foster care, or permitting the relative to on their own start a separate proceeding for custody.
Family Court Act Section 1017 states that “all grandparents” should be notified. However, at this time there are no reported cases that examine whether there is a legal remedy for grandparents who never received notice.
Also, adoption means that you can change the child’s name, get access to all records, make all decisions, and travel anywhere.