Grandparents Caring for Grandchildren without the Custody Battle: Ohio’s Caretaker Power of Attorney

        U.S. census figures indicate that some 6.7 million children in the United States are being raised by grandparents and other relatives. That's roughly one in 12 children, about 10 times the number of children in the U.S. foster care system. Often, grandparents are raising their grandchildren without having any legal custody, making it difficult for them to access services of any kind. Grand families, a term referring to situations where children are being raised by grandparents or other relatives, exist for many reasons, often because the parent(s) face a temporary crisis, such as a serious illness, financial problem, or lack of housing.

    
       In 2004, the Ohio Legislature addressed this problem by creating the caretaker power of attorney through which parents consent to the grandparent having parental rights and responsibilities for the children on a temporary basis. This parental consent to the grandparent(s) care allows the children to have access to educational and medical services which, in the past, might have been denied absent an order granting the grandparent legal custody, an expensive and emotional proposition. By providing legal documentation to the grandparent caregiver who has consent of parents, the power of attorney eliminates expensive legal custody battles and/or children services intervention.

       The Ohio caretaker power of attorney currently may be used only to allow grandparents to have parental rights and responsibilities; it does not cover any other relative or other third party who may be providing for children. However, the Ohio Legislature is considering expanding the power of attorney to allow other third parties, beyond grandparents, to act as caretakers. See 2009  Ohio HB 197, introduced in the Ohio House of Representatives in May, 2009.

       Intended to cover only temporary situations where parents are unable to care for their children, the power of attorney cannot be effective for longer than a one year period. The power of attorney may grant the grandparent the custodial parent’s rights and responsibilities regarding the care, physical custody, and control of the child, including the ability to enroll the child in school, receive information from the school, consent to school related matters and medical treatment. Notably, the power of attorney does not act as a grant of legal custody to the grandparent nor does it affect the rights of the parent in any future legal proceedings.

       The Ohio statute governing caretaker powers of attorney prescribes the form and content that must be used as well as specific notices that must be given. In most situations, the power of attorney must be signed by both parents. It must be filed with the juvenile court where the grandparent resides within 5 days of its creation.

       No court hearing is required to make the caretaker power of attorney effective, provided that it is the first power of attorney. Should subsequent powers of attorney be filed, the court is required to schedule a hearing no later than 10 days after filing.

      The Ohio Legislature’s creation of the grandparent caretaker power of attorney provides a cost effective way for grandparents to care for grandchildren in situations where parents are temporarily unable to do so and consent to the arrangement. I urge the Ohio Legislature to adopt 2009 Ohio HB 197 to expand the power of attorney beyond grandparents so that others caring for children may have an easier time getting access to education and medical services.

       For more information contact Carol L. Gasper at clgasper@msn.com