Grandparent Visitation and Parental Rights

KY Grandparent Visitation And Adoption; Zoeller v. Gutterman

ZOELLER V. GUTTERMAN
FAMILY LAW: GRANDPARENT VISITATION AND ADOPTION
2006-CA-002141
PUBLISHED: AFFIRMING
PANEL: THOMPSON, PRESIDING; NICKELL, STUMBO CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 10/26/2007
Grandmother and her Husband appealed from TC’s order holding that Grandfather had standing to seek grandparent visitation and that visitation would be in the best interest of Grandchild.

FACTS:
Grandchild was born to 15 year-old unwed Daughter, and no putative father was named. Daughter agreed that Grandmother and her Husband would be court-appointed guardians for Grandchild. Daughter died about two years later. Grandmother and Husband filed a Petition to adopt Grandchild in Jefferson Family Court, Division Three. Two weeks later, unaware of the pending adoption petition, Grandfather filed a petition for grandparent visitation in Jefferson Family Court, Division Four. The adoption petition was granted about a month later, prior to the entry of the grandparent visitation order. Grandfather than amended his petition in the visitation action, but Grandmother responded that he lacked standing to seek grandparent visitation because of the adoption. A GAL was appointed for grandchild. The GAL filed her report and motion requesting that Grandfather be granted immediate visitation. TC ultimately ordered that Grandfather have temporary visitation with Grandchild every weekend. After seeking a writ of prohibition from CA, which was denied, and receiving SC’s memorandum opinion affirming same, TC finally held evidentiary hearing. TC determined that Grandfather did have standing to proceed and that it was in Grandchild’s best interests to continue his relationship with Grandfather, and thus granted Grandfather’s petition and established terms of visitation. Grandmother and Husband filed CR 52 and 59 motions, both of which were denied, filed an appeal of these denials with CA, and subsequently filed a motion for intermediate relief with CA and requested emergency relief, which was denied.

ARGUMENTS AND ANALYSIS:
Grandmother and Husband contended that TC should have dismissed the case because Grandfather did not obtain a circuit court visitation order prior to the entry of the adoption decree, and KRS 405.021, the grandparent visitation statute, requires a visitation order to be issued by the circuit court prior to the termination of parental rights of a grandparent’s son or daughter to protect grandparent visitation rights with the children of that son or daughter. CA agreed that this was the correct interpretation of the statute, but that it was incorrectly applied as the case at bar did not concern termination of parental rights. CA found it to be even more important that the statute and cases interpreting it did not allude to situations where one grandparent used the adoption statute as a means to bypass the grandparents’ visitation statute, as CA found Grandmother to have done.

Because a parent’s rights lapse upon death, there is no contested proceeding to alert a grandparent that visitation rights need to be asserted. However, neither the adoption statute nor the grandparents’ visitation statutes require notice to a grandparent of a pending adoption petition. This could leave open the door to grandparents engaging in a race to the courthouse to conclude an adoption prior to the grandparent’s visitation petition. CA stated that the pending adoption petition in this case was such a significant fact that Grandmother and Husband were required to inform TC of its existence. CA found that Grandmother’s and Husband’s concealment of adoption petition was a ‘tactical maneuver to circumvent [Grandfather’s] right’ to have TC determine whether visitation was in Grandchild’s best interest, and that such manipulation of the timing of the adoption precluded them from successfully challenging Grandfather’s standing.

Following the modified best interest standard for grandparents found in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004), CA determined that, because there was strong evidence that Grandfather and Grandchild had a rewarding and loving relationship during Daughter’s lifetime and that Grandchild had established ties to Grandfather’s family, it was in Grandchild’s best interests to have visitation with Grandfather as established by TC.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Source for Post: LouisvilleDivorce.

Grandparent Visitation in Georgia

Do grandparents have the right to visit their grandchildren?

In Georgia, grandparents can ask the Superior Court for visitation rights by filing a Petition for Visitation.

There are two ways for a grandparent to seek visitation.

1. File an Original Action for Visitation. A grandparent can file what is called an 'original action' for visitation. To file this type of action:

• there can't be any other cases before the court that involve custody or visitation for the child
• the parents of the child must be separated or divorced
• the grandparents can't file this type of action more than once every two years, and
• the grandparents can't file this type of action in any year that another custody action has been filed for the child.

2. Join an Existing Case. A grandparent may get involved in an existing case for custody, divorce, adoption, or termination of parental rights. To do this, a grandparent must show the court two things.

• A grandparent must show the court that the child's health or welfare would be harmed if the grandparent could not visit the child.
• A grandparent must show that visitation is in the child's best interests. It is difficult to show these two things. The court does not presume that grandparents should have visitation rights.

Can a grandparent get involved in an adoption case?

Yes, but only when no legal parent is alive at the time of adoption.

Who is a legal mother?

There are two ways to be a legal mother. First, a woman who gives birth to a child is the legal mother. Second, a woman who adopts a child is the legal mother. To be the legal mother, the woman must not have given up her parental rights or had them taken away by the court.

Who is a legal father?

A legal father:

(1) was married to the birth mother when the child was conceived or when the child was born;

(2) married the birth mother after the child was born and recognized the child as his own;

(3) adopted the child;

(4) was found to be the father by a final paternity order; OR

(5) legitimated the child by final order.

The legal father must not have given up his parental rights or had them taken away by the court.

Who is a biological father?

A biological father is the man who got the birth mother pregnant.

SOURCE: LegalAid-GA.org

Source for Post: Georgia Family Law Blog.

Grandparents Denied Visitation with Children of 9-11 Victim

The New York Law Journal (subscription required) reported that the parents of a victim of 9/11 were denied visitation with their grandchildren. I posted a couple of times in the recent past on the issue of grandparent visitation.

According to the article in the Law Journal, after the death of the father, relations between the grandparents and the mother became strained and the mother limited the children’s visits with their grandparents.

The Domestic Relations Law has provision for grandparents to seek visitation with grandchildren following the death of a parent. Visitation will be granted if it is found to be in the best interest of the child.

In this case (Smith v. Smith), Family Court Judge Carnell Foskey found that it would not be in the children’s best interests to have visitation with the grandparents.

There was an incident when [the grandmother] put dog collars around the children’s neck and pretended to walk them down the hall like dogs. In July 2003, the grandmother hit [one of the grandchildren] for not cleaning up her crayons.

The grandparents clearly exhibited behaviors which made it questionable whether they should be allowed to have visitation with the children. Given the reported strained relations with the in-law and questionable conduct, a limitation or complete termination of visitation may have been appropriate.

Source for Post: New York Divorce and Family Law Blog.

Grandparents' Rights Extended to Other Family Members

In Texas, there have been three ways for a grandparent to seek custody or visitation with a grandchild.' Grandparents could file an original petition for custody, they could intervene in a pending lawsuit, or they could sue to request visitation.' Under Texas' unusual terminology (managing conservatorship, possessory conservatorship and possession of or access to a child), the rights conferred by each procedure differ.' For background, see Grandparents' Rights in Texas and Grandparent Access in Texas.

In its 2007 session, the Texas legislature expanded the class of persons who could obtain custody of a child.' Under Texas Family Code section 102.004(a), the right to seek custody of a child has been extended to adults related to the child 'within the third degree of consanguinity.'' Also, Texas Family Code section 102.006(c) now permits most of these persons to seek custody of a child when the Texas Department of Family and Protective Services has terminated the parental rights of the child's parents, provided suit is filed within ninety days of termination.

What does 'consanguinity' mean, and which relatives are within the third degree of consanguinity?' The anti-nepotism provisions of the Texas Government Code answer these questions. 'Consanguinity' means related by blood.' In addition to a child's parents, relatives within the third degree of consanguinity are a child's brother, sister, grandparent, great-grandparent, and aunts and uncles by blood rather than by marriage.' The only group of these relatives that cannot seek custody of a child after termination is great-grandparents.

These changes are welcome.' The previous law ruled out responsible, caring relatives who could have stepped in to rescue a child from a poor environment.' Further, termination (at least by TDFPS) does not preclude a relative from seeking custody of a child.

Texas Family Code section 102.004(a) applies to suits filed on or after September 1, 2007; Texas Family Code section 102.006(a) became effective June 15, 2007.

Source for Post: North Texas Family Law Blog.

Grandparents Seeking Custody Must Prove Parental Unfitness by Clear and Convincing Evidence

In Norrod v. Norrod and Laws, maternal grandparents intervened after their daughter's death seeking custody of their minor grandchild. The trial court denied the grandparents request for custody, finding that the mother was deceased, and that, as a matter of law, Father, not having been shown by Grandparents to be affirmatively unfit as a parent by clear and convincing evidence, is entitled to the care, custody, and control of the child. The court did award the Grandparents visitation rights, finding it in the child's best interest since he had lived with the Grandparents since birth and had bonded with them. Grandparents appealed.

Husband and Wife had agreed on a temporary order granting Wife/Mother custody of the minor child with Husband/Father having standard visitation rights. Because Mother suffered from epileptic seizures, she and the minor child lived with her parents. Within a year of the temporary order, Mother, who was a certified lifeguard and water safety instructor, suffered an epileptic seizure while giving swimming lessons to the minor child. Grandmother discovered both unconscious in the pool. She pulled both from the pool but was able to resuscitate only the minor child. Paramedics transported both child and Mother to the hospital where the child was stabilized but Mother was comatose. Father, who was enlisted in the Army and serving in South Carolina, returned to Oklahoma whereupon he filed a motion for emergency custody.

Grandparents intervened and Mother passed away several weeks later. Grandparents alleged that Mother and child had lived with them since the child's birth, that father had been largely uninvolved in the child's life, that the swimming accident had traumatized the child and removal would only exacerbate the situation, and that he father was unfit as a parent. The trial court found that Grandparents had failed to meet their burden of showing by clear and convincing evidence Father's unfitness as a parent.

One of Grandparents' arguments on appeal regarded the standard of proof required by the trial court. While the Grandparents conceded that the clear and convincing standard had been held by the Oklahoma Supreme Court to apply in divorce proceedings when third parties are seeking custody of the child (McDonald v. Wrigley), they also argued that it was not a hard and fast rule with no exceptions. In support of their argument, Grandparents cited a case which they contended stood for the proposition that custody my be given to grandparents over a fit parent's claim to custody when the grandparents had cared for the child over an extended period of time with the consent of the parent entitled to custody and if the court finds it is in the best interest of the child to do so (In Re: N.L.W.).

The Oklahoma Court of Civil Appeals however held that the trial court had applied the correct burden based upon the controlling authority found in McDonald. The Court repeated McDonald when it said that 'to obtain custody in a divorce proceeding over the objection of a parent, a grandparent must show the parent's unfitness by evidence that is clear and conclusive, and makes the necessity for doing so appear imperative. The unfitness may not be demonstrated by a mere comparison between what is offered by the competing parties but only by a showing that the parent cannot reasonably be expected to provide for the child's ordinary comfort or intellectual and moral development.

Source for Post: Oklahoma Family Law Blog.

Factors Considered for Grandparent Custody and Visitation

Courts grant visitation or custody to grandparents only when certain conditions provided in state statutes are met. Conditions for a grandparent to attain custody differ from those conditions required for visitation rights. A grandparent should be familiar with the conditions for either custody or visitation before determining whether to file a petition to request either from a court of law.

Best Interests of the Child

Courts in every jurisdiction must consider the 'best interest of the child' when granting custody or visitation rights to a grandparent. In some states, the relevant statute provides a list of factors the court should considered when determining a child's best interests. Other states do not provide factors in the statute, but courts in those states typically identify factors in custody and visitation cases interpreting the state statutes.

The following factors in determining the best interest of the child are among those included in state statutes and case law:

• The needs of the child, including considerations of physical and emotional health of the child, the safety of the child, and the welfare of the child
• The capability of the parents and/or grandparents to meet the needs of the child
• The wishes of the parent(s) and the grandparent(s)
• The wishes of the child, if the child is capable of making decisions for himself or herself
• The strength of the relationship between the grandparent(s) and grandchild
• The length of the relationship between the grandparent(s) and grandchild
• Evidence of abuse or neglect by the parent(s) or grandparent(s)
• Evidence of substance abuse by the parent(s) or grandparent(s)
• The child's adjustment to the home, school, or community
• The ability of the parent(s) or grandparent(s) to provide love, affection, and contact with the child
• The distance between the child and the parent(s) or grandparent(s)

SOURCE: FindLaw

Source for Post: Georgia Family Law Blog.

A State Fact Sheet for Grandparents and Other Relatives Raising Children

A State Fact Sheet for Grandparents and Other Relatives Raising Children: "

Across the United States, more than 6 million children are being raised in households headed by grandparents and other relatives; 2.5 million children are in these households without any parents present. As the children's parents struggle with substance abuse, mental illness, incarceration, economic hardship, divorce, domestic violence, and other challenges, these caregivers provide a vital safety net to children inside and outside of the foster care system. This fact sheet provides important information and resources for the grandparents and other relatives raising children in your state.

National and State Data*

The Children

• Nationally, 4.5 million children are living in grandparent-headed households (6.3% of all children under age 18). This represents a 30% increase from 1990 to 2000.
• There are another 1.5 million children in the United States who are living in households headed by other relatives (2.1% of all children under 18).
• In Georgia there are 164,423 children living in grandparent-headed households (7.6% of all children in the state). There are another 53,785 children living in households headed by other relatives (2.5% of all children in the state). Of the children living in households headed by grandparents or other relatives in Georgia, 98,773 are living there without either parent present.

The Grandparents

• Nationally, 2.4 million grandparents report they are responsible for their grand-children living with them: 29% of these grandparents are African American; 17% are Hispanic/Latino; 2% are American Indian or Alaskan Native; 3% are Asian; and 47% are White. 34% of these grandparents live in households without the children’s parents present. 71% are under the age of 60; 19% live in poverty.
• In Georgia, 92,265 grandparents report they are responsible for their grandchildren living with them [5,947 grandparents in Atlanta and 2,572 in Columbus]: 52% of these grandparents are African American; 3% are Hispanic/Latino; 1% are Asian; and 24% are White. 36% of these grandparents live in households without the children’s parents present. 74% are under the age of 60; 20% live in poverty.

Additional Information

• United States Census data on grandparents who are responsible for meeting the basic needs of their grandchildren can also be broken down by county, congressional district, and other categories. Log on to http://factfinder.census.gov. Additional data on grandparents and grandchildren are available at www.census.gov/ population/www/cen2000/briefs.html.
• Additional national and state data on grandparents raising children are available on AARP’s website at www.aarp.org/grandparents.

* These data are taken from the U.S. Census Bureau Table DP-2. Profile Selected Social Characteristics: 2000.

Programs That Can Help

AARP Georgia’s Grandparents Raising Grandchildren Warm Line/Resource Center provides information and assistance via the internet to grandparent caregivers at the Grandparents Resource Center located at the Helene S. Mills Senior Multipurpose Facility, 515 John Wesley Dobbs Avenue in Metropolitan Atlanta. Information and assistance are provided through a Warm Line that links relative caregivers to community resources such as support groups, child care, health care, transportation, and other services along with an understanding ear from grandparents and other relatives who have ‘been there.’ Contact: Call (404) 523-6305 or e-mail aarp.warmline@co.fulton.ga.us.

The Georgia Department of Human Resources, Division of Aging Services, through the Georgia General Assembly, approved Governor Sonny Perdue’s requested state funds to develop a statewide Kinship Care Initiative. Services provided in all 12 Area Agencies on Aging regions (effective July 2005) are: information and assistance, that provides resources for relative caregivers, support groups, and community education. In addition, some Area Agencies on Aging in Georgia are providing summer camp scholarships for children, tutoring grandparents and grandchildren in reading and other school activities, and providing case management and individual counseling. Contact: Leslie McKee, Kinship Care Coordinator, Division of Aging Services, at (404) 657-5336 or lemckee@dhr.state.ga.us.

Kinship care specialists are placed in the following 12 Area Agencies on Aging:

• Atlanta Regional Commission – Mary Lou Vergara at (404) 463-3524 or mvergara@atlantaregional.com
• Central Savannah River – Georgia Jopling at (706) 210-2000 (x 147) or gjopling@csrardc.org
• Coastal Georgia – Sharon Dickol at (912) 264-7363 (ext. 231) or sbdickol@dhr.state.ga.us
• Coosa Valley/Northwest Georgia – Karen Carter at (706) 295-6485 or kbcarter@dhr.state.ga.us or Irma Garcia Rose at (706) 291-8496.
• Georgia Mountains – Julia Jessee at (770) 538-2650 or jcjessee@dhr.state.ga.us
• Heart of Georgia Altamaha – Kathy Keith at (912) 367-3648 or kbkeith@dhr.state.ga.us or Kerrie Sirmans at (912) 367-3648 or klsirmans.dhr.state.ga.us
• Lower Chattahoochee – Cecelia Adams at (706) 256-2943 or cadams@dhr.state.ga.us or Misty Jamieson at (706) 256-2910 or mdjamieson@dhr.state.ga.us
• Middle Georgia – Natalie Brown at (478) 751-6466 or nbrown@mgrdc.org
• Northeast Georgia – Michele Farley at (706) 369-5650 at mdfarley@dhr.state.ga.us
• Southeast Georgia/South Georgia – Katie Flynn at 1-888-732-4464 or (912) 285-6097
• Southern Crescent – Gloria Sanford at (706) 407-0021 or gdsanford@dhr.state.ga.us
• Southwest Georgia – Nancy Harper at (229) 432-1124 or neharper@dhr.state.ga.us or Doris Long at (229) 432-1124 or dhlong@dhr.state.ga.us.

Georgia State University’s Project Healthy Grandparents offers multiple services to enhance the physical and emotional well-being of grandparents raising grandchildren 16 years of age or younger. Services include monthly home visits by a registered nurse and social worker, monthly grandparent support groups, parent education classes, transportation to meetings, early intervention services, and legal services referrals. All services are free. Contact: Judy Perdue, Community Partnerships Coordinator, at (404) 651-0341 or jperdue@gsu.edu. Visit the Project’s website at http://www.gsu.edu/phg.

Jewish Family Career Services provides individual and group support for grandparents and other relatives raising children. Contact: Rhoda Margolis at (770) 677-9400 or rmrgolis@jfcs-atlanta.org.

The Relative Caregiver Program provides case management services, home health care evaluations, information and referrals services, support groups, parent education, parent/child group activities, and other supports to relatives caring for children of family members in Sumter, Schley, Macon, and Dooly counties. Contact: Kathy Arnold, Case Manager, at (229) 931-2238 or karnold@canes.gsw.edu.

Project Kincare in Gainesville provides monthly support group meetings, educational seminars and recreational activities with transportation and childcare provided as needed. These activities will provide respite for grandparents, introduce the kinship care families to others with a similar family structure and provide families with instructive support. Contact: Linda Kirkpatrick, Program Director, at (770) 503-3330 or lkirkpatrick@gainsville.org.

The Relative Caregiver Program at Georgia Southwestern University provides support services to grandparents and other relatives raising dependent children. The program provides in-home family assessments, health care screening, and follow-up services, home-based parent education, center-based support groups, individual counseling, crisis intervention services, and family outings. Contact: Laura Bauer at (229) 931-2034 or lbauer@canes.gsw.edu.

The Rockdale County Kinship Care Program offers services for grandparents and other relative caregivers raising children in Rockdale County. Services include case management, support group meetings, educational/information sessions, information and referral, respite care, material aid, and recreational activities. Contact: Claudia Cian at (770) 922-4633 or Claudia.cian@rockdalecounty.org.

Choices for Children, Inc. has started a program to reach grandparents and other relative caregivers in the Newton County area. The program features a support group where caregivers can come together and share information about services they have discovered to assist them in the care of their grandchildren or other child relatives. The support group meets once a week. The participants determine what the agenda will be. In addition, Choices for Children staff meet with new caregivers who come to the program to assess their service needs and find appropriate resources. Choices for Children offers parenting classes, legal advocacy, and a referral system. Contact: Jeanette Perry at (770) 385-7450 or alcovycasa@aol.com.

Clayton County Kinship Care Resource Center services grandparents and relative caregivers and their families in Clayton County. It is also a demonstration site for the Atlanta region and the rest of the state. Programs include support groups, case management, information and referral services, computer classes, celebrations, field trips, and a ‘clothes closet.’ The Center, a program of the Clayton County Department of Aging, is staffed by a full-time care manager, a part-time receptionist, and a host of volunteers. Contact: Angie Burda at (770) 477-3417 or aburda@bellsouth.net.

National Center on Grandparents Raising Grandchildren has been established at Georgia State University through a grant from Hasbro Children’s Foundation. The Center focuses on issues associated with intergenerational families. The activities of the Center include professional education for social workers, nurses, psychologists, lawyers, and other professionals involved with grandparents raising grandchildren, coordination of research and policy related to grandparent caregivers, and national replication of the Project Healthy Grandparents (PHG) model, a successful comprehensive service program that supports grandparent-headed families. The Center also has additional PHG pilot sites: twoat the University of Georgia in Athens and at one at Valdosta State. Contact: Dr. Dorothy Carrillo, Assistant Director of Operations, at (404) 651-0435 or dcarrillo@gsu.edu.

Grands Who Care at Mercy Senior Care, Inc. in Rome is a support group for grandparents and other relatives raising children that meets twice a month. Workshops are held on various topics such as working with the school system, parenting skills, problem solving, grandparents’ rights, and stress management. Contact: Irma Rose, LCSW at 706-291-8496 or irose@sjha.org. In addition, there is a regular kinship care support group held each week at St. Elizabeth’s Episcopal Church in Dahlonega. Contact: Jocelyn Joaquim at (706) 864-2768 or JayWolfSister@aol.com.

The Kinship Care Center at the Medical College of Georgia’s School of Nursing in Augusta serves grandparents and other relative caregivers raising children in the 14 county CSRA. Services include counseling, legal counseling and child custody issues, monthly support group meetings for Augusta families, a monthly newsletter, summer respite for some caregivers, and information and referral to community resources. Contact: Mike Patton at (888) 284-2273 (outside Augusta) or (706) 721-9626 in Augusta.

Project GRAND-D (Grandparents Rearing and Nurturing Dependents with Disabilities), a project of Institute for the Study of Disadvantage and Disabilities, is a program for grandparents who are caring for their grandchildren with special needs. It is comprised of 10 monthly scheduled group meetings addressing various needs including emotional, economic, educational, medical, developmental, legal, respite, and daycare. Part of each meeting is dedicated to family counseling provided by a licensed family therapist. Participants are asked to attend the monthly meetings held at Hughes Spalding Children’s Hospital. Contact: Janice Nodvin at (678) 595-4854 or jnodvin@aol.com

The Relative Caregiver Hotline is a project of the Georgia Senior Legal Aid Hotline that provides statewide legal advice and handles questions about caring for a relative child such as medical and educational decisions, legal relationship to the relative child, public benefits and living wills. Contact: Statewide hotline 1(888) 257-9519

The Kinship Care Project of the Georgia Legal Services Program provides critical legal help and outreach to low-income grandparents and other relative caregivers of children who need stable loving homes. The project can assist families with obtaining financial assistance to help them raise their relatives’ children. Additionally, families may get legal assistance with housing, education, and consumer issues. Contact: The Kinship Care Project of Georgia Legal Services Program at (800) 498-9469.

Atlanta Legal Aid sponsors the Grandparent/Relative Caregiver Project, which assists low-income relatives in the Metro-Atlanta area who want to adopt minor children. The Project also handles a limited number of custody cases and administrative hearings for denials of adoption assistance benefits. Services provided through both programs are free. Contact: Lindsay C. Verity, Director, Grandparent/Relative Caregiver Project, at 404-614-3953 or lcverity@atlantalegalaid.org.

Children in Foster Care

Sometimes state child welfare agencies place children in foster care with grandparents or other relatives. Most state agencies call these placements ‘kinship care.’ In Georgia, the Department of Human Services, Division of Family and Children Services reports:

Number of children in kinship care: As of December 2005, there were 15,119 children in out-of home placements under the Department’s supervision. Of these children, 2,682 were placed with kin.
Preferences for kinship care: State policy requires that kin be considered first when an out-of-home placement is sought for a child under the Department’s care if the relative caregiver can provide safe environment for the child and meet all the state’s child protection standards.

Kinship care licensing: There is no separate licensing program for kinship foster parents. Kin have to meet the same licensing standards and requirements and receive the same foster care payment rate as non-kin foster parents.

Subsidized guardianship programs: In addition to foster care payments and other benefits available to kin raising children in the foster care system, some states also have subsidized guardianship programs. Georgia has a Relative Care Subsidy Program for children transferred from the legal custody of the Department to the permanent custody of an approved relative caregiver and for whom the court has issued a non-reunification order. Caregivers’ homes are reviewed annually by the agency and every 3 years by the court. The Relative Care Subsidy Program uses Temporary Assistance to Needy Families (TANF) funds to support the program. (Social Services Manual, April 2001, Chapter 1000, pp. 10-19). Contact: Renee King, Policy Specialist, Department of Human Resources, Division of Family and Children Services at (404) 657-3403 or irking@state.ga.us.

State kinship care contact: Questions about kinship foster placements should be directed to Renee King, Policy Specialist, Department of Human Resources, Division of Family and Children Services at (404) 657-3403 or irking@state.ga.us.

Training and support for kinship foster parents: Any person applying for a foster care license must complete 30 hours of pre-service training. In addition, a minimum of 15 hours of in-service training is required each year for license renewal. Contact: Renee King, Policy Specialist, Department of Human Resources, Division of Family and Children Services at (404) 657-3403 or irking@state.ga.us.

Public Benefits

Children are often eligible for state and federal benefits even if their caregivers do not have legal guardianship or custody. These programs include:

Financial Assistance: Cash payments may be available to children and their grandparents and other relative caregivers through the Temporary Assistance for Needy Families (TANF) Program:

• A ‘child-only grant’ is for the child and based only on the child’s income.

• An adult caregiver may also be included in the TANF grant — based on their income and subject to work requirements and time limits.

Call 1-800-869-1150 or 404-651-6316 or log on to www.dhr.georgia.gov.
Food Stamps: Based on the family’s income, kinship care families may also be eligible for food stamps to help meet food and nutrition needs. For more information about these programs, call 1-800-869-1150 or 404-651-6316 log on to http:/ /www.dhr.georgia.gov.

Health Insurance: Grandparents and other relative caregivers may apply for free or low-cost health insurance on behalf of the children they are raising through the Right from the Start Medicaid and Peachcare for Kids programs. In some cases, caregivers may also be eligible for free coverage under Medicaid. For more information about how to apply for Medicaid, call 1-800-809-7276 or log on http://dch.georgia.gov. For more information about Peachcare for Kids, call 1-877-GAPEACH or log on to www.peachcare.org.

Other Benefits: Other state and federal benefits may also be available to eligible children, such as child care subsidies, disability benefits, and special education services. For more information about these, download CDF’s benefit guides for grandparents and other relatives raising children at www.childrensdefense.org or call (202) 662-3568. For more information on the federal benefits that may be available to caregivers, log on to the National Council on Aging’s Benefits CheckUp web site at www.benefitscheckup.org.

State Laws

The following state law may be helpful to grandparents and other relatives raising children1:

Medical Consent (GA Code Ann. § 31-9-2): This law allows a grandparent, adult aunt or uncle, adult brother or sister, or stepparent (or any person with power of attorney) to consent to medical care on behalf of a child: (1) after the treatment provider has made a reasonable attempt to contact the child’s parent or legal guardian and that person cannot be contacted; and (2) if the parent or legal guardian has not given the treatment provider notice that they oppose the treatment.

1Laws change and are subject to different interpretations. These general descriptions are not intended as legal advice in any particular situation.

National Resources

AARP Grandparent Information Center (888) 687-2277 www.aarp.org/grandparents/

Adoption Information Clearinghouse (888) 251-0075 http://naic.acf.hhs.gov/

The Brookdale Foundation Group (212) 308 -7355 www.brookdalefoundation.org

Child Welfare League of America (202) 638-2952 www.cwla.org

Children’s Defense Fund (202) 628-8787 www.childrensdefense.org

Generations United (202) 289-3979 www.gu.org

Grandfamilies of America (866) 272-3761 www.grandfamiliesofamerica.com

GrandsPlace 860) 763-5789 www.grandsplace.com

KINship Information Network (772) 501-0502 www.kinsupport.org

National Aging Information Center (202) 619-0724 www.aoa.dhhs.gov

National Committee of Grandparents (866) 624-9900 www.grandparentsforchildren.org

SOURCE: AARP Foundation Grandparent Information Center (GIC) Local Support Database

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Source for Post: Georgia Family Law Blog.

Michigan grandparent visitation statute upheld

From Updates in Michigan Family Law, MIchigan grandparent visitation statute upheld.

The Court’s opinion did provide some practice pointers worth noting.

This decision is to be published. The specific facts of the case, however, are unusual enough to limit the application of the decision. Practice pointers to take away from this appellate decision are:

1) Think through your trial strategy in a grandparenting case and be certain to assert your constitutional challenges—that the statute is unconstitutional on its face and that it is unconstitutional as applied—at the trial court level in order to preserve them for appeal.

2) From the perspective of the grandparents, consider on appeal (as the court of appeals implied) a challenge to the trial court’s finding that the parent is a fit parent and argue that the presumption that there is no substantial risk of harm to the child if contact with the grandparents is denied should not have been applied. The problem with application of the presumption is the burden then to prove that there’s a substantial risk of harm. In many, if not most cases, proving substantial risk of harm will be extremely difficult. Here, the specific facts of the case—in particular, the father’s attempt at suicide prior to the second day of the trial—would likely have been substantial evidence upon which to challenge the trial court’s application of the presumption in the first place. Because this case had such unusual facts—including the fact that the father was suspected of murdering the child’s mother—the fact that he attempted suicide during the pendency of the case could support a finding that he was not a fit parent because he did not consider the physical, mental and emotional well-being of the child when he chose to attempt to remove himself from the child’s life.

In fact, the suicide attempt itself might have been argued as grounds for a decision that because the father had proven his disregard for a need to be available for the child who had already lost one parent in a violent manner, there would be a substantial risk of harm to the child’s mental, physical, or emotional health if the court did not grant grandparenting time in sufficient quantity to preserve the child’s connection to his maternal grandparents.

3) In the end, it was the fact and the substance of the expert testimony offered at the trial that the court of appeals relied upon to justify upholding the trial court’s decision that the grandparents had met their burden of proof. The father’s expert declined to offer an opinion on whether there would be a substantial risk of emotional harm to the child if the child did not see the grandparents. The grandparents’ expert did, however, offer her opinion that, to support the child’s mental, physical, and emotional health, it was vital for the child to have his mother’s memory kept alive for him since he had lost his mother through these tremendously unfortunate circumstances.

Pointers certainly worth noting. I have found in the cases I handle for clients involving grandparent visitation and parental rights, they are facts driven.

Grandmother Granted Visitation by Appeals Court

The Appellate Division granted a grandmother visitation with her grandchildren in the case In the Matter of Carol Steinhauser.

Of significance, the Court noted that that mere animosity between the children’s father and his mother-in law was not a sufficient basis for denying visitation. In the brief opinion, the Court, after detailing the two pronged-inquiry for considering a grandparent’s petition for visitation,concluded that visitation would be in the best interests of the children.

For more, visit the New York Divorce and Family Law Blog

Supreme Court Won’t Review Grandparent Case

A widowed father lost his bid Monday to have the Supreme Court decide whether grandparents should have court-ordered visits with his son.

The justices refused to get involved in the dispute between Shane Fausey, a federal-prison guard in Pennsylvania, and his dead wife's mother.

Cheryl Hiller won rulings in Pennsylvania courts giving her regular visits with Fausey's son, Kaelen, over the father's objection.

Grandparents do not have to prove that being kept away would be harmful to their grandchildren in order to get court-ordered visitation, the Pennsylvania Supreme Court said.

Fausey said the court ruling violated his constitutional right to make parenting decisions.

The Supreme Court has never answered that constitutional question and state courts are divided on the issue. Twelve states prohibit courts from ordering grandparent visitation unless it can be shown that the child would be harmed by their absence, Fausey's lawyers said in court papers.

The case is Fausey v. Hiller, 06-863.

Source for Post: NY Times