What Rights Do Grandparents Have?

John deals with a lot of people in retirement, and many of those folks have grandchildren. Sometimes that is because the kids themselves aren’t doing so well. In these situation, there might be questions about what kind of rights the grandparents have to see and care for those grandkids? Then, John and Devin discuss Social Security benefits for grandparents.

The Troxel Case Rules Grandparents’ Rights

Almost all rules about grandparents’ rights are based on a U.S. Supreme Court case called “Troxel,” which was decided in 2000.

Here’s the short version of the case. A couple, Tommie and Brad, were married and had kids. They ended their relationship, and Brad went to live with his parents. During the separation, the kids would spend time with Brad, at his parents’ house. Then, Brad committed suicide. After Brad’s death, the kids continued visiting Brad’s parents, and then the mother stopped permitting the grandparents access to the grandchildren.

The grandparents filed a petition for visitation rights, and it was granted through the state courts. This case was appealed until it reached the U.S. Supreme Court. The Supreme Court came back and said that a parent’s right to determine who their child spends time with is a constitutionally protected right and can not be interfered with. The child’s parent ultimately gets to decide who can spend time with the child.

This completely changed the way grandparents rights were handled.

How This Applies To Different Situations

In a situation where a child has a living and capable parent, then the grandparents don’t have rights if they conflict with the parent(s)’ wishes.

Now, if the child is completely orphaned, then the grandparents can step in. In those cases, you may end up in a brand-new custody battle between the maternal grandparents and the paternal grandparents.

Depending on state law, if there has been an ongoing relationship, such as if the child has been living with the grandparents without the child, then the grandparents may have different rights. How long do the grandparents have to be actively involved in the kids’ lives in establish that they might have some grandparents rights? The answer depends on the state and the situation, but generally at least 6 months.

John summarizes the subject by saying that if you’re talking about grandparents rights or grandparents access, you need to start with the idea that grandparents have no rights. Then you start looking for ways to work around that starting point.

Devin asks, what if the parents have a record of something that seems to be negative? Does that impact the grandparents’ ability to gain some sort of rights? John says that the short answer is, “Probably not.” The situation would have to rise to the point where the courts had stepped in with the idea of terminating parental rights.

Social Security Benefits For Grandchildren and Grandparents

Devin says that there are a lot of questions about Social Security benefits for grandkids. In 2012, the U.S. Census Bureau found that there were nearly 3 million grandchildren living with their grandparents and their grandchildren had sole responsibility for them.

A grandchild can get benefits through the work history of the grandparent as long as the grandchild is a dependent of the grandparent, and the grandparents must have legally adopted the child, or both parents must be disabled or deceased. This leads to grandparents wanting to legally adopt their grandchildren.

The adoption itself is pretty easy, but all the steps that lead up to the adoption are time consuming and complicated. Generally speaking, to adopt a child that has living parents, the first thing you have to do is terminate the rights of the parents. If they’ll voluntarily relinquish those rights, then that’s pretty simple. But they may not be easily found, or they may not want to relinquish the rights. In that case, the parental rights have to be terminated through the court system.

Plus – it is expensive. An uncontested termination of parental rights and adoption is probably going to cost from $3,000 to $10,000, and a contested termination of parent rights and adoption is going to cost at least 4 times that much.

It may not make financial sense to pursue adoption because the benefits may be less than the cost. If a child is eligible for benefits, a child’s benefit is 50% of the full retirement age benefit of the grandparent, and if the grandparent passes away, the child’s benefit is 75% of the workers full retirement age benefit. However, there is a family maximum benefit per individual’s family, so they may not get the full calculated amount.

Then, you also have to consider the other implications of adoption. For example, adoption may change the child’s eligibility for certain college financial aid.

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