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Grandparents Rights FAQ

Family Law / Child Custody and Visitation / Grandparents Rights FAQs

Q: Our son and his wife divorced in 2003. Since then, our son has moved away and is late in his support payments, and now our former daughter-in-law will not allow us to see our grandchildren. What can we do?

A: The Ohio Legislature passed laws in 1990 that provide a method for grandparents of divorced or deceased parents to get visitation orders so that they can maintain relationships with their grandchildren. Grandparents may also obtain court-ordered visitation with an illegitimate child. In addition, grandparents may intervene in the parents’ divorce case at any time, even after the divorce has been granted, and ask the court to award them their own visitation schedule with their grandchildren. Grandparents may also file a complaint for companionship in juvenile court in cases where the grandchild is illegitimate or where their own child is deceased and they are having trouble visiting his or her offspring. The 1990 Ohio laws provide that a court may order visitation if it determines this to be in the best interest of the children. The court must consider 16 factors including the wishes of the parents of the child in making that determination.

Q: We are having a family dispute and now our son and daughter-in-law won’t let us see our grandchildren. What can we do?

A: Probably nothing. Grandparents’ visitation rights are statutory. There is no statutory right to a visitation order when the family is intact. Only children that are illegitimate, or have divorced or deceased parents may be the subject of court-ordered visitation. The reason is that generally, the right to be free from governmental interference in everyday life is a constitutionally protected right. Therefore, unless the State has some compelling interest (such as protecting a child that is illegitimate, has a deceased parent or is a ward of the court through divorce) it cannot order visitation.

Q: We don’t approve of our daughter’s lifestyle and we think we should have custody of our grandchildren. How difficult is it to get custody?

A: It’s fairly difficult. You may file a complaint for custody in juvenile court. At the hearing, however, the court may not give you custody even if you can show it may be in the children’s best interest to be in your custody. You have to prove that both parents are UNFIT and, unless there is some clear sign of abuse or neglect, that is difficult to prove.

Q: We have court-ordered visitation with our grandchildren, but our former daughter-in-law remarried and her new husband has filed to adopt the children. She says that after the adoption our court order is no good and we will not be able to see them anymore. Is she right?

A: Yes–if she and your son are divorced, or if they were never married. According to the language of the Adoption Statute, your visitation rights will be terminated by the stepparent adoption, and any visitation following the adoption would continue strictly on a voluntary basis. This statutory language does not apply where the natural parent is deceased, however, so if your son is deceased, you may still be able to hang on to your visitation rights after the adoption. There is, from time to time, movement in the legislature to change the Adoption Statute language, but this matter is not currently being addressed.

POA/CAA

Q: What is a caretaker power of attorney and a caretaker authorization affidavit?

A: A caretaker power of attorney (POA) and a caretaker authorization affidavit (CAA) are both documents that allow grandparents to exercise parental authority over their grandchildren who live with them. However, neither a POA nor a CAA changes legal custody or child support. These can be changed only by a court order after certain legal requirements have been met. Also, the law creating the POA and the CAA does not address health insurance coverage for children. Rather, coverage is determined by the policy of the particular insurance company.

Q: What parental authority is given in a POA or CAA?

A: Grandparents are authorized to provide care, physical custody, and control of the child, including the ability to enroll the child in school, obtain school information, and consent to school-related matters. They also may consent to medical, psychological, and dental treatment. Neither the POA nor the CAA gives grandparents the authority to consent to the marriage or adoption of the child.

Q: What is the difference between a POA and a CAA?

A: A POA is signed by the parent, guardian, or custodian, who transfers authority to the grandparent. A POA can only be created in certain circumstances, including when the parent, guardian, or custodian is: incarcerated, physically or mentally ill, or homeless; being treated for substance abuse; or when the parent, guardian, or custodian believes that the POA is in the child’s best interest. By contrast, a CAA is not signed by the parent, guardian, or custodian, but, rather, by the grandparent, who assumes authority when the parent, guardian, or custodian is absent after efforts to locate have been unsuccessful.

Q: What is required for a POA or CAA?

A: The POA or CAA must include particular language and be completed on a specific form as provided in the statute. The required signatures must be notarized by an Ohio notary. The POA or CAA must then be filed, within five days after it is notarized, in the juvenile court of the county where the grandparent lives or in another court that has authority over a child, such as a domestic relations or probate court. Certain other information about the grandparent and the child’s custodial history (“child custody affidavit”) must be filed along with the POA or CAA. Either the POA or CAA can be sent to the court. A filing fee is not required. Once the POA or CAA is filed, no hearing or court approval is necessary. The court may, however, report to child welfare authorities any information that indicates the grandparent has been convicted of or is responsible for child abuse or neglect, or that the POA or CAA is not otherwise in the child’s best interest.

Q: How long does a POA or a CAA last?

A: Either a POA or a CAA can be terminated at any time by a parent, guardian, or custodian. The POA or CAA also ends when the child moves from the grandparent’s home, when a court orders termination, or when one year has passed. When a POA or CAA ends, the grandparent must give written notice to the court, the child’s school, medical providers, and certain other persons that the POA or CAA is no longer in effect. Notice must be made not later than one week after the date that the power of attorney terminates. After a termination, a second or subsequent POA or CAA can be filed, but a court hearing and approval are necessary to make the documents effective.

Q: Can a POA or CAA be created so a child can go to a school in the grandparent’s district?

A: Although grandparents can use both a POA and a CAA to handle many school matters, neither document can be created simply to take advantage of athletic or academic programs that are available in the grandparent’s school district. If a POA or CAA is created for this purpose and not for the purposes outlined in the law, the POA or CAA is void from the start. Also, a grandparent who creates a POA or CAA for an invalid purpose can be subject to prosecution for falsification, a first-degree misdemeanor.

Q: I have custody of my six-year-old grandson. What should I do to make sure he would be provided for if I can no longer care for him?

A: If you have responsibility for your minor grandchild, you must plan carefully so that he is taken care of if something happens to you. Because grandparents are older during the grandchild’s minority years, planning becomes all the more important. Basic planning includes:

  • a Will that designates who should care for your grandson in the event of your death;
  • a general durable power of attorney designating someone to make financial decisions for you if you are unable to do so;
  • a health care power of attorney designating someone to make health care decisions if you are unable to do so;
  • a “HIPAA” authorization form that allows the release of medical information for you and your grandson;
  • “Medicaid triggers” in your documents to allow Medicaid planning so that your assets can be arranged to enable you to qualify for Medicaid for yourself, your spouse, and your grandson.

Q: I received a sizeable inheritance a few years ago. Should I do any planning to make sure that, when I die, my grandson’s inheritance from me won’t be swallowed up by taxes?

A: If you have considerable assets, additional advanced planning may be necessary. For example, grandparents must be aware of the generation-skipping transfer (GST) tax, a federal tax that is in addition to the usual estate tax. The GST tax applies whenever anyone gives assets to someone who is two or more generations younger. Currently, the GST tax rate is between 45 percent and 46 percent, depending upon the year of the transfer. You may pass down as much as $2.0 million without paying the GST tax. There are several techniques you can use to pass down assets for the benefit of your grandson without paying the GST tax. For example, you may wish to do the following:

  • Arrange to have your grandson’s tuition and medical expenses paid for directly. As long as the payment is directly to the educational or medical provider, no GST or gift tax is triggered.
  • Set up a “grandchild’s trust”. A grandchild’s trust is irrevocable and must be used for the benefit of a particular grandchild. At the grandchild’s death, the assets are included in the grandchild’s estate for estate tax purposes. Transfers of up to $12,000 each year for the grandchild may be free from tax. If you are married, this amount may be doubled.

Q: My grandson, whose parents live in another school district in Ohio, has come to live with me. Can I enroll him in my school district while he’s living with me?

A: You may be able to. In July 2004, Ohio law changed to make it easier for grandparents to enroll their grandchildren in the school district in which the grandparents live. If your grandson is living with you and you are able to contact his parents, the parents may execute a caretaker Power of Attorney (POA) giving you the authority to enroll the child in school and to make educational and health care decisions on behalf of your grandson. If you are unable to contact your grandson’s parents after reasonable effort, you may execute a Caretaker Authorization Affidavit (CAA) that gives you the authority to enroll your grandson in school and to make educational and health care decisions on your grandson’s behalf. There are various requirements for both the POA and CAA, including notarization by an Ohio notary. The forms are valid for 12 months unless a parent terminates them earlier, the child leaves the grandparent’s home, or a court terminates the POA or CAA. The forms may be available through the juvenile court in your county and they must be filed with that juvenile court or another court with authority over the child, such as a domestic relations or probate court. These forms also must be presented to the school at the time of your grandson’s enrollment.

Another way of getting your grandchild enrolled in your school district is for the boards of education of the two school districts to agree. If your grandson is under age 22, and is living with you even though his parents have custody, he may attend school in your school district if, first, the boards of education of your school district and his parents’ school district enter into a written agreement that: 1) says there is a good reason for your grandson to go to school in your district; 2) describes this good reason; and 3) consents to your grandson’s attendance. This arrangement is often called a “Grandparent’s Agreement”.

A third option might apply if you have tried to get legal custody of your grandson. Ohio law allows your grandson to be enrolled in your school district tuition-free for not more than 60 days if you give a sworn statement that you have started legal proceedings for custody. If custody proceedings are completed within that 60-day period, then your grandson can continue to attend school in your district, and your school district will charge tuition to the school district where his parents live. If custody proceedings have not been completed within 60 days and if there is no Grandparent’s Agreement, then you may have to pay tuition so that your grandson can continue attending school in your district.

Remember that, if your grandson needs special education services, then he may attend school in your school district tuition-free while he lives with you regardless of custody issues or whether a Grandparent’s Agreement is in place.

Q: Our son, a single parent, recently was called to active military duty in Iraq. We are caring for our granddaughter while he is away. Can she attend school in the district?

A: Yes, for a limited time. Under Ohio law, your granddaughter may attend school in your school district for up to 12 months if your son files an affidavit with your district’s superintendent of schools. The affidavit must state:

  1. that your son is serving outside Ohio in the United States armed services;
  2. that he intends to live in your district when he returns to Ohio; and
  3. your name and address.

Alternatively, under federal law, your son may execute a military power of attorney that grants you, or any other caretaker, the ability to enroll his daughter in school, to obtain information from the school, to consent to school-related matters regarding his daughter and to consent to medical, psychological or dental treatment for his daughter. This military power of attorney will be treated the same as a caretaker POA while it is in effect.