Virginia Grandparents' Rights as a Primary Caregiver

December 08, 2010

The 2000 U.S. Census began to track questions of grandparents as primary caregivers. The results showed 2.4 million grandparents in this role. While grandparents frequently have an abundance of love and concern for their grandchildren, they need to understand the legal ramifications of grandparenthood.

For Virginia law to apply, it needs to be determined to be the home state for the grandchild. If their parent lives here or the parent or guardian has 'significant contacts' with the state, Virginia MAY will be the home state. The grandchild does not have to live in Virginia, as the home state is determined by their parent's residence.

Jurisdictional questions are especially complex, and grandparent rights can be affected by many factors and these questions are best discussed with a family law attorney who can address the specific facts of your situation.

Custody

In circumstances where the parents are unable to function appropriately as parents, obtaining full legal custody of the children is frequently the best solution. Circuit or district courts make court-ordered custody and visitation arrangements after a judge hears all the facts of a case. Once this determination is made, the grandparents have the same parental rights and responsibilities as the biological parent had.

The statutory definition of legal custody in Virginia is:
- a legal status created by court order which vests in a custodian the right to have physical custody of the child, to determine and redetermine where and with whom he shall live, the right and duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, all subject to any residual parental rights and responsibilities or
- The legal status created by court order of joint custody as defined in Section 20-107.2.

Adoption

Adoption is a step beyond legal custody, gives the grandparents permanent parental rights over their grandchildren and requires the biological parent to surrender their rights. Adoption is a serious step, and brings with it all the legal and financial obligations that accompany raising a child. You cannot return the child to the biological parent after the adoption, so fully discussing the matter with an attorney is important.

Finances and Tax

Adopting or obtaining legal custody of a grandchild creates many financial responsibilities. In some cases, grandparents have to quit jobs to handle raising their grandchildren. There are some tax benefits that come with dependent grandchildren, such as child tax credits and FSAs for childcare expense. A family law attorney can advise you of the professionals you can speak with who can help you make informed choices.

In Virginia, there are financial assistance programs that can help with the expense of grandchildren. For instance, The TANF program provides eligible families with a monthly cash payment to meet their basic needs. Children must be:
- Under age 18, or if 18, will graduate from high school before age 19
- Going to school regularly if he is between the ages of five and 18
- Living with a parent or other relative
- A U.S. citizen or an eligible immigrant

Never an Easy Decision

For grandparents in Virginia the decision to take on the responsibility as primary caregiver for their grandchildren is never easy. Their children may be incapable of continuing as parents due to substance abuse or serious medical issues. Some may die, leaving the grandparents as the only option, absent placing the children in foster care.

If you are faced with these issues or questions and need to become the legal caregiver for your grandchildren, speak with an experienced family law attorney who can explain Virginia grandparent rights, and explore the options available to you.

Article provided by Jennings and Jennings
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