Legal Guardianship of Grandchildren

If the world were a perfect place and we lived in Utopia, every child would have a loving and safe home, and receive the affection and support they need to thrive. Yet it doesn’t take a family law attorney to tell you many children simply do not grow up that way. If half of all first marriages fail (and the divorce rate goes up with each subsequent marriage) many children grow up in less than ideal situations. My parents were divorced when I was in kindergarten, I’ve been a single father of three daughters for most of their life, and my childrens' maternal grandparents raised one of their grandchildren.

            Little impresses me more than grandparents who sacrifice their golden years to care for their grandchildren, when their own children are either unable to or refuse to.  Several good friends of mine were raised by their grandchildren and they all developed into very happy and productive members of society.  When it comes to the legal avenues a grandparent can pursue when raising grandchildren, generally there are three options: guardianship, custody and adoption.

Grandparent Guardianship in Missouri

            At the time of birth, a child’s parents will automatically become guardians of that child, unless there is a legal reason for this to be denied to one or both parents. With respect to grandparents becoming legal guardians for their grandchildren, legal guardianship is a legal status where a judge appoints one or more grandparents to make decisions for and exclusively care for the grandchildren. Under section 475 of the Missouri Probate Code, any person over the age of 18 is allowed to file a petition to pursue guardianship of a minor child if the potential guardian is qualified under the law. 

            While the family court system is not without its faults, it is advisable for most grandparents wanting to care for their grandchildren to seek help from the court to establish a legal relationship to protect themselves and their grandchildren. Among other benefits, establishing legal guardianship allows grandparents to:

• Have the right to make medical decisions on behalf of their minor grandchildren;

• Have the ability and right to enrol their grandchildren in the school of their choice

• Add their grandchildren to their health insurance plan, or otherwise

obtain health insurance on behalf of their grandchildren

• Apply for Missouri State Medicaid and other financial assistance from the state to help with the financial burden of raising grandchildren.

Why Should Grandparents Pursue a Legal Guardianship of their Grandchildren

Grandparents in the State of Missouri are allowed to apply guardianship for than grandchildren under several conditions, including the following:

• When the children's’ biological parents are unable, unfit or refuse to care for the children. (Here we are usually talking about one or both parents being incarnated or suffering from significant mental illness and/or addiction;

• When the grandparents have been the primary caregiver for extended periods of time and desire the legal decision making right for areas such as education, medical care, and financial issues;

• For permanency and stability.

Missouri Statutory Law Concerning Legal Guardianship of Minors.

Missouri Probate Code (Chapter 475.025)

Rights of parents as natural guardians of minors:  

            “In all cases not otherwise provided for by law, the father and mother,

with equal powers, rights and duties, while living, and in case of the

death of either parent the survivor, or when there is no lawful father,

then the mother, if living, is the natural guardian of their children, and

has the custody  and care of their persons and education. When the

estate of a minor is derived from a parent, the parent as natural guardian

has all of the powers of a conservator appointed by a court, with respect

to property derived from him, except that no court order or authorization

is necessary to exercise these powers and the natural guardian may invest, sell and reinvest the estate of the minor in such property as is reasonable

and prudent.”

Missouri Probate Code (Chapter 475.045). 

Who may be appointed guardian of a minor.    

1. Except in cases where they fail or refuse to give required security or are adjudged unfit for the duties of guardianship or conservatorship, or waive their rights to be appointed, the following persons, if otherwise qualified, shall be appointed as guardians or conservators of minors:

(1) The parent or parents of the minor, except as provided in section 475.030;

(2) If any minor over the age of fourteen years has no qualified parent living, a person nominated by the minor, unless the court finds appointment contrary to the best interests of the minor;

(3) Where both parents of a minor are dead, any person appointed under this section or section 475.046 by the will of the last surviving parent, who has not been adjudged unfit or incompetent for the duties of guardian or conservator.

2. Unfitness of any of the persons mentioned in subsection 1 for the duties of guardianship or conservatorship may be adjudged by the court after due notice and hearing.

3. If no appointment is made under subsection 1 of this section, the court shall appoint as guardian or conservator of a minor the most suitable person who is willing to serve and whose appointment serves the best interests of the child to a stable and permanent placement.

How do grandparents apply for legal guardianship in Missouri?

            To begin the process of applying for legal guardianship of their grandchildren, the potential guardian must file a petition for guardianship in the probate section of the Missouri County Circuit within which they or the grandchildren reside. Following the filing of the notarized petition and the associated required paperwork, the court will schedule a hearing with the goal to determine if the guardianship is in the best interests of the children. If the probate court grants the Petition for Guardianship, the guardian will have full custody and control of the grandchildren, but also the responsibilities.

A comparison of pros and costs of custody options for grandparents of their grandchildren:

Physical custody:

• Ideal in circumstances where the grandparents and the child’s biological parents agree and with decision to have the grandparents raise the grandchildren;

• With physical custody only, grandparents have no legal rights allowing them to make crucial decisions for the child (if power of attorney is granted from the biological parents, the grandparents’ custody is strengthened);

• Parents retain the legal right to take the child(ren) back “repossess”  and end the power of attorney at any time:

• Biological parents retain all legal decision-making power over the children.

  
  

Legal custody:

• Ideal in circumstances when grandparents and the child’s biological parents are in agreement and there is a high likelihood that the biological parents may eventually return to the position of full time parent.

• Legal custody allows grandparents the legal authority to make the everyday decisions regarding the rearing of the grandchildren.

• Legal custody may not always give grandparents the right be able to make medical decisions for the grandchildren or add the grandchildren to health their health insurance plan.

• Usually parents have visitation rights when grandparents only obtain legal custody

• The biological parents retain the right to petition the court to attempt to regain custody of their biological children 

  
  

Guardianship

• A legal guardianship is the most appropriate option when the grandparents desire an extended commitment and desire the legal right to make important decisions regarding their grandchildren;

• Allows grandparents the legal right to make daily decisions regarding their grandchild’s upbringing, including educational and medical decision-making;

• A legal guardianship offers grandparents more rights than legal custody.

• Parents are generally allowed visitation with their children, if appropriate

• Parents retain the right to petition the court to end the guardianship so they can reestablish custody.

• A legal guardianship is the best option when grandparents want to ensure that they will raise their grandkids permanently.

Adoption

• The grandparents have total authority (legal and physical) over the grandchildren.

• The grandparents are established as the permanent legal “parents”.

• The biological parents lose all custody rights (both physical and legal)

• The biological parents are not allowed to request custody back at anytime in the future

            When grandparents step-up to the plate and raise their grandchildren because the children's biological parents are unable to, refuse to or are otherwise unfit, there are a variety of legal options. Guardianship is generally regarded as the best option when grandparents raise their grandchildren. If you are raising your grandchildren or are considering doing so, it is important to talk with an empathetic and experienced attorney. Attorney Robert Davis represents both grandmothers and grandfathers (or both) in obtaining the legal rights to protect themselves and their grandchildren. Please call our office at 816-287-1530 for a free telephone consultation with attorney Robert Davis.