Grandparents Should Seek Legal Custody or Guardianship

Grandfather kissing grandson

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One in 10 children in the United States lives with a grandparent. A third of these households have no parents present at all, so the grandparents are raising their grandchildren by themselves. These households are sometimes called skip generation families. In the great majority of these families, however, the grandparents do not have legal custody or guardianship of their grandchildren. And this can be a very bad situation.


Guardianship is a legal term referring to the relationship between a minor child and someone other than a parent who is caring for that child. It can describe the relationship between grandchildren and grandparents who parent them, although its use is not limited to grandparents. Guardianship is the form of grandparent custody that gives grandparents the most rights without the actual adoption of the grandchildren.

Guardianship may have slightly different meanings according to your state of residence, so be sure to double check all information with local laws. In some states, guardianship is known as conservatorship. Generally speaking, child guardians have legal custody and the right to make decisions about the children in their care. If parents wish to regain custody, they must go to court.

Why You Should Consider Guardianship

When grandparents find themselves raising grandchildren, there are some good reasons why they should seek guardianship, primarily to prevent the children from being summarily taken back by the parents. Although courts give parents special consideration in custody cases, if the grandparents lack legal guardianship, the parents may be able to reclaim their children without going through the legal system.

Even if the grandparents have guardianship, however, the parents' rights are not normally terminated.

They may still be entitled to visitation with their children, and they are customarily responsible for paying support to whoever is caring for their children. Of course, many of the circumstances that lead to grandparents becoming guardians of their grandchildren also mean that support is unlikely to be paid. For example, guardianship is a fairly common outcome when parents are incarcerated or when parents have substance abuse problems.

The Rights of Guardians

Guardians have the right to make decisions regarding the children in their care. Guardians have decision-making rights in the areas of education and medical care, including psychological and psychiatric care. In some states, guardians have additional rights, including the right to name alternate guardians for the children in their care.

Some states offer an option called subsidized guardianship, in which grandparents or others can be granted guardianship of children and receive benefits similar to those that foster parents receive. Subsidized guardianship keeps children out of an overburdened foster care system and keeps grandparents from having to qualify as foster parents. In some situations, grandparents may opt to become foster parents, but in other cases, they may have difficulty being accepted by the system.

Responsibilities of Guardians

Child guardians may be legally responsible for the deeds of the children in their care. This can range from paying for a broken window to much more serious misdeeds. The financial burden of guardianship often goes beyond what is supplied by the parents and/or any governmental agencies, so it is not an arrangement to be entered into lightly.

Why Make It Legal?

Grandparents who are raising grandchildren without the benefit of any formal relationship are asking for trouble. Without a legal form of grandparent custody, a parent or parents can swoop in and take their children away from the grandparents who have been caring for them. Even worse, the parent or parents can totally cut off contact between the grandparents and grandchildren.

Unfortunately, even grandparents who have some form of legal custody can still have their grandchildren taken from them. Those who have gone to the trouble of making their relationship with their grandchildren legal do, however, have a stronger standing in the eyes of the law.

Some grandparents raising grandchildren become legal foster parents. Taking this step enables them to access a wider variety of resources than what is available to those in informal arrangements. They may receive payment for fostering and may qualify for some legal services.

When Grandparents Get Custody

Children are usually left in their grandparents' care because the parent or parents cannot care for them themselves. Poverty is the most common underlying issue, but there may be co-occurring factors such as mental health concerns, domestic violence, and substance abuse. Depending on the situation, parents may leave children with grandparents for extended periods of time.

Potential Conflicts

In the event that parents reclaim their children, they have several reasons for wishing to keep their children away from their grandparents:

  • They may be jealous of the relationship that the grandparents have created with their grandchildren.
  • They may be reminded whenever they see the grandparents of the lapses that caused them to give up their children in the first place.
  • They may feel that their parenting skills are constantly being compared to the abilities of the grandparents.

To some parents, these can feel like legitimate reasons for cutting off grandparents.

Grandparent Reluctance

Grandparents frequently balk at legalizing their relationship with their grandchildren because they fear the reaction of the children's parents. Grandparents may fear to cause a permanent rift between themselves and an adult child, no matter how dysfunctional that child may be as a parent. The other obstacles that grandparents face have to do with the legal system. Many grandparents lack both a degree of comfort with the legal system and the funds necessary to get legal advice.

When grandparents are dealing with the new and consuming task of caring for grandchildren, it's very easy to let legal matters slide. They shouldn't. Instead, they should motivate themselves by contemplating the prospect of being cut off completely from their grandchildren.

A number of agencies and organizations are devoted to helping grandparents raising grandchildren, and free legal advice is often available from Legal Aid or similar agencies.

Grandparents may be able to file some of the paperwork themselves, which can cut down on legal costs considerably. Sometimes grandparents can even represent themselves in court. Almost universally, grandparents want what is best for their grandchildren. In some cases that means being with their grandparents. In such cases, it's best to make grandparent custody legal.

8 Sources
Verywell Family uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read our editorial process to learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.
  1. United States Census Bureau. 10 Percent of Grandparents Live With a Grandchild, Census Bureau Reports. 2014.

  2. Van Etten D, Gautam R. Custodial Grandparents Raising Grandchildren: Lack of Legal Relationship Is a Barrier for Services. J Gerontol Nurs. 2012;38(6):18-22. doi:10.3928/00989134-20120509-02

  3. Children's Bureau. Child Welfare Information Gateway. Kinship Caregivers and the Child Welfare System. 2016.

  4. Colorado State University, Department of Human Development and Family Studies. Frequently Asked Questions: Child Support. 2020.

  5. United States Census Bureau. The Opioid Prescribing Rate and Grandparents Raising Grandchildren: State and County Level Analysis. 2019.

  6. AARP. Raising grandkids: legal issues. 2020.

  7. Children's Bureau. Child Welfare Information Gateway. Kinship Guardianship as a Permanency Option. 2018.

  8. Baker J, McHale J, Strozier A, Cecil D. Mother–Grandmother Coparenting Relationships in Families with Incarcerated Mothers: A Pilot Investigation. Fam Process. 2010;49(2):165-184. doi:10.1111/j.1545-5300.2010.01316.x

By Susan Adcox
Susan Adcox is a writer covering grandparenting and author of Stories From My Grandparent: An Heirloom Journal for Your Grandchild.