Grandparents often play an important role in the lives of their grandchildren. However, under Kansas law, a grandparent has no legal authority to make decisions involving a grandchild, even in emergency situations. State law does provide several alternatives for a grandparent to acquire legal rights, including custody, in specific limited circumstances.
A grandparent interested in obtaining legal authority over a grandchild should talk with an experienced family law attorney before taking any steps in that regard. Attempting to navigate the substantial legal complexities of Kansas child custody law without the benefit of legal counsel could put a grandparent in a less advantageous position.
Under Kansas law, grandparent custody and grandparent visitation are separate legal issues. Our family law attorneys address grandparent visitation in Kansas in a different blog post. Please refer to that article for information on the topic of visitation. The summary below discusses only custody-related alternatives for grandparents and does not address visitation issues involving grandparents.
Kansas law recognizes the right of parents to have primary control over the care and raising of their children. State law is consistent with recognition by the United States Supreme Court that parents have a fundamental right to establish a home and raise their children and that only extraordinary circumstances justify disturbance of that right.
If parents do not consent to grandparent custody or other legal rights, a grandparent can only get legal authority over a grandchild if a court determines that a parent is unfit, the child is likely to sustain harm, or staying with the parent is contrary to the child’s welfare. Generally, a Kansas court will not grant custody to a grandparent unless evidence demonstrates that staying with the parent(s) is detrimental to the child.
There are several different Kansas legal proceedings in which a grandparent may ask a court for custody and other legal rights regarding a grandchild. They include:
In addition, if parents agree to give a grandparent the ability to make decisions about a grandchild, the parents can give a grandparent legal authority through a legal document called a Power of Attorney (POA). For the authority in a POA to be legally valid, the document must meet specific legal requirements.
A grandparent may ask a court to appoint the grandparent as the child’s legal guardian. A guardianship petition may be filed either with or without the parents’ consent. The parents must be notified of the petition. If a parent does not consent to appointment of the grandparent, the parent may contest the guardianship petition.
To justify appointment as legal guardian, a grandparent must present evidence establishing that a guardianship is in the child’s best interests and that the grandparent is an appropriate person to raise the child.
A guardianship may be temporary or permanent. The court may terminate a guardianship at any time if a parent demonstrates the ability to resume caring for the child. A guardianship expires automatically when the child reaches age 18.
A grandparent wishing to initiate a guardianship petition should consult with an experienced family law attorney. The proceeding occurs in court and evidence must be introduced in a hearing before a judge.
A grandparent may request custody of a grandchild in a child-in-need-of-care proceeding under the provisions of the CINC Code, KSA § 23-3207. A separate statute, KSA § 38-2296, provides that when a child is removed from care of the parents under the CINC Code, a grandparent requesting custody shall receive “substantial consideration” in determining what custody, residency, and visitation arrangements are in the best interests of the child. The statute directs the court to consider all relevant factors, including but not limited to:
If the court places the grandchild in custody of the Secretary of the Department for Children and Families, a grandparent who requests placement is entitled to this same consideration.
Obtaining custody of a grandchild in a CINC proceeding requires a grandparent to provide substantial evidence to the court or Secretary. For that reason, representation by an experienced family law attorney is essential in both situations.
If a court terminates all parental rights, or if both parents voluntarily relinquish their rights or consent to adoption, a grandparent may petition the court for adoption of the grandchild. An adoption permanently grants all parental rights to the grandparent. Assistance from an experienced family law attorney is necessary to pursue a petition for adoption.
In a situation where parents consent to a grandparent having legal authority to make decisions concerning the grandchild, the parents may assign specific legal rights to the grandparent in a Power of Attorney. A POA is a legal document that must be drafted and executed in compliance with strict legal requirements. Consultation with a knowledgeable attorney is essential to ensure that a POA complies with the wishes of the parents and grandparents and meets the legal requirements.
A Power of Attorney usually is temporary. For example, it may be used when a parent is hospitalized, incarcerated, or deployed overseas. The parent can terminate the Power of Attorney at any time. Authority under a POA ends automatically when the child reaches 18 years of age.
If you are a grandparent who is concerned about the welfare of your grandchild, the options available to you depend entirely on your circumstances and those of the parents and child. Kansas laws relating to child custody and welfare are extremely complex. Analyzing your grandchild’s situation in light of those laws requires assistance from a Kansas lawyer.
While the above discussion summarizes alternatives for obtaining legal rights relating to a grandchild in Kansas, the only way to learn what choices you may have is to discuss your situation with an experienced family law attorney. Taking any steps regarding your grandchild without advice from an attorney could jeopardize your chances of pursuing the remedies that may be available to you under Kansas law.
If you have questions relating to grandparent rights involving custody or visitation, or if you need assistance with any other type of domestic or family law issue, our Salina, Kansas domestic and family law attorneys at Hampton & Royce, L.C. are here to help. We serve clients throughout the state. Contact us to schedule a consultation.