ADOPTION; CUSTODY OF CHILDREN; DIVORCE; PROBATE COURT;
September 22, 2003
GRANDPARENTS’ CUSTODY OF GRANDCHILDREN
By: Saul Spigel, Chief Analyst
You asked for an explanation of (1) Connecticut law on grandparents’ custody of, and visitation with, their grandchildren and (2) “de facto” custody laws in other states.
Grandparents in Connecticut can become the custodian of a grandchild in four ways.
1. They can adopt a grandchild after a court terminates both parents’ rights to the child.
2. They can ask the probate court to appoint them as the child’s guardian.
3. They can be awarded custody by the Superior Court when the child’s parents divorce.
4. They can informally assume custody.
The first three methods provide the grandparents with legal rights in relation to the child and some protection against a parent’s attempt to regain custody. The latter method provides no rights or protection.
Three states—Indiana, Kentucky, and Minnesota—allow grandparents (and others) to seek legal custody of a child by showing that they have been the child’s de facto custodians. Such a showing requires them to prove that they have been the child’s primary caretakers for some period of time in the parents’ absence. If they show this, the laws require the court to treat them the same as the parents in making custody decisions. Michigan and South Carolina considered, but did not enact, similar law this year.
Adoption creates a legal relationship of parent and child between people who are not parent and child by birth. Through court action, the adoptive parents gain the same legal duties toward the adopted child as they would toward a birth child. These are the obligation to care for and control the child and make major decisions affecting his or her education and welfare (CGS § 45a-604). Adoption usually involves the complete and final termination of the birth parents’ rights.
Any legally competent person age 18 or over may become an adoptive parent by filing an application with the probate court. The court asks the Department of Children and Families (DCF) or a DCF-licensed agency to investigate to find out if he or she will be a fit parent. At a hearing, the court must consider the investigative findings and determine that the adoption is in the child’s best interest.
Removal of Parent as Guardian. Parents are the legal guardians of their children, which gives them the duty to care for and manage the children’s’ affairs. But the probate court can remove a parent as guardian and give guardianship to a grandparent or other party.
The process begins when the party seeking guardianship files a motion in the probate court (or the court can initiate the change on its own). The court orders an investigation, unless it determines one is not needed. DCF or a DCF-licensed agency conducts the investigation.
After the investigation the court holds a hearing to determine whether to (1) remove the parent as guardian and (2) appoint the applicant as guardian. In determining the first, it must find by clear and convincing evidence (the highest level of proof in a civil matter) that the parent:
1. consents to removal as guardian;
2. has abandoned the child, that is shows no reasonable degree of interest in, or concern or responsibility for, the child;
3. has failed to provide care, guidance, or necessary control over the child’s physical, educational, emotional, or moral well-being; or
4. has physically abused the child or given access to the child to another person who abused him.
When deciding whether to appoint the applicant as guardian, the court considers:
1. the applicant’s ability to meet on a daily basis the child’s physical, educational, emotional, and moral needs;
2. the child’s wishes concerning a guardian, if he is sufficiently mature and able to form a preference;
3. the existence of any established relationship between the child and the applicant; and
4. the child’s best interest.
A parent still has some rights even if he is removed as a child’s guardian. The court may permit the parent to visit the child. And a parent who has been removed may apply to the court that removed him for reinstatement as guardian if he believes the factors that resulted in his removal have been resolved satisfactorily. The court must first hold a hearing to determine whether to reinstate him (CGS §§ 45a-609 to –621).
Other Forms of Guardianship. A sole parent or the Department of Children and Families can ask the probate court to appoint another adult as a child’s coguardian. In considering this request, the court applies the same criteria as it does for a contested guardianship case (see above). If it agrees to the coguardianship, the court can make it effective immediately or when a specific event, such as the parent’s mental incapacity, physical debilitation, or death, occurs. If the coguardianship is contingent on an event, the coguardian must submit a written affidavit that it has occurred before the guardianship becomes effective (CGS § 45a-616).
Instead of going through the probate court, a child’s parents can also designate someone to assume guardianship if a specific event like those mentioned above occurs. The designation must be made in writing and witnessed by two people. In order for the guardianship to become effective, the “standby” guardian must produce a written, witnessed document signed under penalty for false statement that the contingent event has occurred (CGS §§ 45a-624 to –624g).
A parent can ask the probate court to appoint someone as temporary guardian for up to one year. The parent can do this if he or she is unable to care for a child for any reason, including illness and absence from home. The guardianship ends when the parent notifies the court and the temporary guardian (CGS § 45a-622).
A grandparent or a related or unrelated third party can ask the Superior Court to give them legal custody over a child. This is most often sought when a child’s parents are divorcing. Legal custody is like guardianship in that it is a court order giving the grandparent the right to care for and make decisions regarding the child’s welfare. And, like guardianship it is not permanent; the court can modify its order at anytime, transferring custody back to a parent or to another adult.
To obtain legal custody, a person must file suit in Superior Court. If both parents consent to the custody change, the court is likely to grant it; if they do not, according to Sandra Lax, a family law attorney in Bridgeport, the applicant must prove (1) that being with his or her parents will harm the child’s growth or development or (2) that the parents are unfit to care for their child. The court’s decision is guided by the child’s best interest.
Parents do not lose their rights when custody is transferred to a third party. The court may require them to pay child support and may give them visitation rights. And a parent can subsequently ask the court to modify its custody order and return the child to him or her (CGS § 46b-57).
Connecticut has no laws governing informal custody arrangements between parents and grandparents. Written informal agreements are not legally enforceable and do not give grandparents any legal right to custody. They might give grandparents who are caring for their grandchildren the documentation they need to make decisions for the child, for example enrolling him in a school or obtaining medical records. They can also show that a parent has not abandoned the child, which may help if the parent wants to reclaim custody.
The U. S. and Connecticut Supreme courts have ruled that grandparents have no right to visit with their grandchildren if the parents do not want them to (see OLR reports 97-R-0020 and 2000-R-0644, enclosed). A Connecticut grandparent (or any other third party) can ask the Superior Court to grant a visitation order. The court can do so if it determines visitation is in the child’s best interest. If the child is old enough, the court will consider his or her wishes. A visitation order does not give a grandparent any parental or guardianship rights to the child, nor does it create any financial obligation on him (CGS § 46b-59).
DE FACTO CUSTODY LAWS
Indiana (Indiana Code, 31-14-13-2 to 10)
Indiana, in 1996, was the first state to give grandparents another option to seek custody of their grandchildren: status as a de facto custodian. The law requires the court to make a person a party to a custody proceeding if it finds by clear and convincing evidence that he is the child’s de facto custodian. But it does not define that term. It makes evidence that the child has been cared for by a de facto custodian one of eight factors the court must consider in determining a child’s best interest. And, in making its custody decision the law also requires the court to consider the custodian’s wishes; the extent to which he has cared for, nurtured, and supported the child; and the parents’ intent and circumstances in placing the child with him. The law requires the court to award custody to a de facto custodian if it determines this is in the child’s best interest.
Kentucky (KRS Ann. , § 403. 270 )
In 1998, the Kentucky General Assembly adopted its version of “de facto” custodian. This law defines the term and requires a court that determines a person is a de facto custodian to give him or her equal standing in court with a child’s parents in cases involving custody of the child.
To qualify as a de facto custodian, a person (who could be a person other than a grandparent) must show by clear and convincing evidence that the child has lived with him and he has been child’s primary caretaker and source of financial support for:
1. six months or more, if the child is under three years old; or
2. a year or more, if the child is three years old or above or has been placed with the caretaker by the state child protective services agency.
The time a child spends with a grandparent after a parent begins a proceeding to regain custody does not count in determining the required minimum residence and caretaking period.
In deciding whether to give custody to a parent or a de facto custodian the court must be guided by the child’s best interest and must consider such factors as:
1. the wishes of the parents, child, and the de facto custodian;
2. the extent to which the de facto custodian has cared for, nurtured, and supported the child;
3. the parents’ intent and the circumstances under which the child was placed with the de facto custodian, including whether domestic violence was a factor and whether the child was placed to allow the parent to seek work or attend school; and
4. the physical and mental health of all individuals involved.
In addition to awarding custody to one or the other party, the court can award joint custody to the parents and the de facto custodian.
In February 2003, the Kentucky Court of Appeals upheld this law in the face of a challenge by a parent who argued that it infringed on the “fundamental right of a natural parent” to determine the care, custody, and control of his child. In a two-to-one ruling, the majority noted that the law requires a court to determine “that the natural parent has abdicated his or her role as primary caregiver for a substantial period of time” (Rogers v. Blair, No. 2001-CA-001835-MR, as reported in the Louisville Courier-Journal, February 8, 2003).
Minnesota (Minn. Stat. 257C. 01 to . 07)
Minnesota adopted its de facto custodian law in 2002. It is similar to Kentucky’s in some respects but differs significantly in others. The principal differences follow.
1. In making custody decisions, Minnesota courts do not have to give equal standing to parents and de facto custodians; instead, they must not give a parent preference over a de facto custodian.
2. In addition to showing that he has been the child’s primary caregiver for six months or a year (depending on the child’s age), the de facto custodian applicant must show by clear and convincing evidence that the child’s parents have neglected to provide food, shelter, clothing, health care, education, nurturing, and other care necessary for the child’s development. The law sets specific criteria the court must consider in making this determination, including the parents’ intent in placing the child with the de facto custodian and the amount of involvement they had with the child during their absence and whether a sibling is already in the de facto custodian’s care.
3. Once he proves that he qualifies as a de facto custodian, the grandparent (or other party seeking custody) must show by a preponderance of evidence that placing the child in his custody is in the child’s best interest.
4. If either the parent or potential de facto custodian is receiving public assistance on behalf of the child or public child support enforcement services, notice of the application for custody must be given to the assisting agency.