In the first part of this series, we explored the various legal avenues available to grandparents seeking visitation with their grandchildren under Ohio law.
But what about custody? As early as 1877, the Ohio Supreme Court held in Clark v. Bayer that fit parents have a paramount right to the custody of their children unless they forfeit that right or become totally unable to care for their children. Further, the United States Supreme Court has repeatedly emphasized that parents have strong protections under the Due Process Clause of the Fourteenth Amendment to make decisions concerning the care, custody, and control of their child.
In this second installment we will examine how grandparents can seek legal custody of their grandchildren in Ohio through a parental agreement or in cases where the parents are absent.
Temporary Custody Through Power of Attorney
There are situations in which parents may wish to grant grandparents temporary custody so that they can take over decision-making responsibilities for the child. This can be done by signing a power of attorney (POA) under Ohio Revised Code 3109.52.
Circumstances that qualify for a POA under Ohio law include when the parent:
- Is:
- Seriously ill, incarcerated, or about to be incarcerated,
- Temporarily unable to provide financial support or parental guidance to the child,
- Temporarily unable to provide adequate care and supervision of the child due to a physical or mental condition,
- Homeless or without a stable housing, or
- Entering or about to enter a residential treatment program for substance abuse;
- Is the surviving parent after the other parent has passed away and has the authority to execute the power of attorney; or
- Has a well-founded belief that the POA is in the child’s best interest.
In addition:
- The child must already be residing with the grandparent at the time of signature and the POA cannot be used solely to enroll the child in a particular school district;
- The POA does not grant authority to consent to the child’s marriage or adoption;
- The POA does not affect the rights of parents, guardian or custodian in any future custody proceeding;
If both parents have custody, then they must both sign the POA. If only one parent has custody, that parent may sign the POA alone so long as one of the following applies:
- The custodial parent made reasonable efforts to locate and notify the other parent but has been unable to do so;
- The other parent is legally prohibited from receiving a notice of relocation; or
- The other parent’s rights have been terminated by a juvenile court order.
The specific required language for the POA can be found in Ohio Revised Code 3109.53. Once executed, the POA must be filed in the juvenile court of the Ohio county where the grandparent resides.
The temporary custody granted under a POA will be revoked and custody will immediately revert to the parent(s) if:
- A custodial parent revokes the POA in writing and notifies the designated grandparent and the appropriate juvenile court;
- The child ceases to reside with the designated grandparent;
- A court order terminates the POA; or
- The child or designated grandparent passes away.
Temporary Custody Through a Caretaker Authorization Affidavit
In situations where the child resides with grandparents, but the custodial parent(s) cannot be located, residential grandparents may find themselves unable to legally make important decisions regarding the child’s education or medical care.
In such situations, Ohio Revised Code 3109.65 allows a residential grandparent to execute and file a Caretaker Authorization Affidavit (CAA) if despite reasonable efforts they are:
- Unable to locate or contact the child’s parents, guardian or custodian; or
- Unable to locate or contact the child’s mother and the grandparent is not required to contact the child’s presumed father because paternity has not been established; or
- Unable to locate or contact one parent and the grandparent is not required to contact the other parent because there is an existing custody order where:
- That parent has been prohibited from receiving notice of a relocation; or
- That parent’s parental rights have been terminated.
Like the POA, a CAA cannot be executed solely for school enrollment purposes. It also automatically terminates if:
- The child stops living with the grandparent,
- A court terminates the affidavit; or
- The child or grandparent passes away.
However, unlike a POA, a CAA also terminates if the child’s parent, custodian, or guardian takes action to override a decision made by the grandparent and the grandparent either returns the child to the parent or fails to file for legal custody within 14 days.
The required language for a CAA is found in Ohio Revised Code 3109.66.
Legal Custody Through Parents’ Agreement
Parents can also choose to grant legal custody to a grandparent through a formal agreement. To do so, the parents must enter into an agreement relinquishing their parental rights. This agreement must then be reviewed, approved, and incorporated into a court order.
Such agreements are rare. In most cases, grandparents seeking legal custody must petition the court and present evidence to support their claim.
The third and final installment of this series will discuss what grandparents need to prove in court to successfully obtain legal custody of their grandchildren.
To discuss further, contact KJK Family Law attorney Eva Saulnier (ECS@kjk.com) or Janet Stewart Scalley (JS@kjk.com).