Under What Circumstances Can a Grandparent Become the Guardian for Grandchildren?

  • By:Karpenski & Schmelkin

According to the most recent U.S. Census, about six million children under 18 are being raised by grandparents. If you are one of the 2.7 million grandparents who is currently caring for a grandchild, or who wishes to take over the care of a grandchild, it is imperative that you understand how to become your grandchild’s legal guardian in Massachusetts.

Are You a Temporary or Informal Caretaker?

All too often a grandparent agrees to take over the care of a grandchild on a temporary or informal basis. This may happen for a variety of reasons. The parent may have recently become unemployed and cannot financially support the child or the parent may have a mental health or substance abuse issue that prevents the parent from being able to provide the child with a stable home. 

If you find yourself in this situation, you may (understandably) want to step in and agree to care for your grandchild. If you do, it is important to understand that unless you take additional steps you will have no legal authority over the child. Not only can the parent decide to remove your grandchild at any time, but you may also run into problems with things such as enrolling the child in school or consenting to medical treatment.

Formal Guardianship

If you plan to take over the care of your grandchild for more than a brief period of time, or more importantly, if you wish to have legal authority over your grandchild, you will need to become your grandchild’s legal guardian. As your grandchild’s legal guardian, you will have the authority to make decisions for the child, as if you were his/her parent. Guardianship is not the same as adoption. The parent does not permanently lose his/her parental rights; however, while the guardianship is active, the grandparent has the legal authority to care for the child and make all decisions relating to the child.

To become your grandchild’s legal guardian, you must petition the appropriate court. When you petition for guardianship over a minor child, notice must be provided to the parents of the child, any current guardian, anyone the child has lived with within the previous 60 days (except foster parents), and to the child if he/she is over 14 years of age. Notice must also be given to the Department of Children and Families if they have custody of the child and to the United States Veterans Administration if the child is entitled to VA benefits. 

With good cause, you may be able to obtain guardianship over your grandchild on an emergency (and temporary) basis without waiting for the parent(s) to be notified. If the court does grant your petition for emergency guardianship the parents must be notified, and a hearing will be scheduled after proper notice is given to determine if the temporary guardianship should be made permanent.

The parents of the child can agree to your appointment as a guardian, making the process much easier. If the parents do not agree to your appointment as guardian, a judge will ultimately decide if guardianship is warranted at a hearing. Both the child and the parents are entitled to legal representation at the hearing. 

All decisions made by a judge must be made using the “best interest of the child” standard. In the case of a petition for guardianship by a grandparent, this usually means you will need to convince the court that the parents are unable or unwilling to properly care for the child. This may involve proving that the parents have a history of abusing, neglecting, or abandoning the child. It could also be shown by evidence of a mental illness and/or substance abuse problem that prevents the parent from providing financially and emotionally for the child. If you believe that it would be detrimental to your grandchild for the parent(s) to have visitation with the child you can ask the court to include a provision in the final Order prohibiting visitation or requiring supervised visitation.

To be eligible to be appointed as your grandchild’s guardian you must live in the United States and not have a criminal history of child abuse or neglect yourself. In Massachusetts, if the child is over 14 years of age the judge will appoint a guardian chosen by the child unless the judge determines that doing so would not be in the best interest of the child.

If you are a grandparent who is responsible for the care of your grandchild you should have an attorney involved to represent your interests.

Since every guardianship case requires individual attention, you need someone with compassion and experience who has handled these sensitive matters before. Contact Karpenski & Schmelkin to schedule a consultation today at (508) 231-5765 and let us help you resolve your guardianship issues.

Posted in: Child Custody