Frequently Asked Questions

Grandparents Raising Grandchildren - Legal Issues

Legal Issues

Educational information provided here should not be used as a substitute for seeking sound legal advice. Your situation may require legal assessment or advice to meet your individual needs. Please contact an attorney or other qualified legal advisor in your area. Assistance in finding an attorney is available through Find A Lawyer on the Colorado Bar Association website.

What is a legal relationship between a grandparent and the grandchild he or she is raising? What are the possible options for our family?

A legal relationship is written authority for a grandparent to care for a grandchild. There are four primary legal options:

  • Power of attorney;
  • Custody/allocation of parental responsibility;
  • Guardianship; and
  • Adoption.

A power of attorney is the least formal; it does not involve the court. The parent(s) can give and revoke this authority at will. Custody and guardianship do involve the court, but are usually of an indefinite duration, including a long term relationship. Adoption involves the court, and is a permanent change of the legal relationship. Each of these options is discussed in more detail below.

What is a power of attorney?

A power of attorney is written permission from one person (the principal) to another person (the agent) to perform certain acts that the principal would have authority to perform for him or herself. A power of attorney ("POA") gives the agent a parallel power to act in addition to the principal's power to act; it does not diminish the principal's power to continue to act on his or her own behalf. The principal retains the right to revoke the power of attorney and "fire" the agent at any time, for any reason, or for no reason at all.

How does a power of attorney to a grandparent operate regarding legal matters for a grandchild?

In the family law arena, a power of attorney regarding a child generally is written permission from a parent to another person authorizing that person to care for a child and make certain decisions for that child. This power of attorney ("POA") can vary from handwritten permission to obtain medical care to a formal document prepared by an attorney and signed in front of a notary public. A power of attorney from the parent to the grandparent usually gives the grandparent the authority to make certain decisions for the child, but it does not reduce any of the rights of the parents. The parent is able to revoke the power of attorney, take the child back, or change decisions that have been made by the grandparent. Any time a child is being cared for by someone other than the legal parent or guardian, it is important for the caregiver to have a power of attorney so that the child is able to receive medical care and/or other assistance in times of need.

Although the POA may authorize the grandparents to make all decisions for a child, including medical, educational, residential, religious, and other matters, there are some legal limitations on this power. First, Colorado law allows for a power of attorney regarding a child to be valid for a maximum of twelve months. After twelve months, the parents must sign a new power of attorney to continue the authority of the agent (grandparent). Second, by law, an agent under a power of attorney may not consent to either marriage or adoption of the child. Some school districts will not accept a power of attorney as a basis for enrolling a child in the grandparent's school district; they may require a court determination of guardianship or allocation of parental responsibility. Also, most health insurance companies will not allow grandparents to enroll a grandchild on their health insurance coverage based upon only a power of attorney; they usually require a court order, as well.

The parent may give specific powers to the grandparent, limited to only a few things or the POA may grant the grandparent the right to make all decisions for the child. For example, the right to make medical decisions could be in emergency cases only. The power of attorney needs to be signed only by one of the child's parents or legal guardians. If grandparents expect disagreements about the power of attorney, it is best to seek advice from an attorney when writing it.

If I want a more stable award of responsibility for my grandchild, not a power of attorney that could be immediately revoked by the parents, what are my options?

Other than adoption, which is permanent and essentially irreversible, the two primary options are legal guardianship and legal custody. In Colorado, these two options are handled by two different branches of the civil court system. Guardianship is handled by the probate courts and custody (which is called allocation of parental responsibility in Colorado) is handled by the domestic (family law) courts. If the child is the subject of a dependency and neglect action, the court in that case would also have the power to enter orders for guardianship or allocation of parental responsibility for the child, at certain stages in the case.

What is allocation of parental responsibility or custody?

Although the public tends to use the common term of "custody," Colorado law no longer uses that label. Instead, Colorado uses the longer phrase, "allocation of parental responsibility and decision making." This is the legal authority to make decisions about a minor child. The court specifically allocates decision making about three topics, or occasionally more. The three required elements of allocation of parental responsibility ("APR") are: education, religious upbringing, and non-emergency medical care. (Of course, emergency medical care is handled by whatever responsible adult is caring for the child at the time of an emergency.) Usually this authority is allocated to both or one of the child's parents, but sometimes it is allocated to another person who is filling a custodial or parental role for the child, such as a grandparent, aunt or uncle, step-parent, or another involved and appropriate person.

How can a grandparent get an order for allocation of parental responsibility (custody)?

Allocation of parental responsibility ("APR", commonly called "custody") must be granted by a court order (usually in domestic relations court) and an attorney is often involved. An APR order gives the grandparent the right and obligation to care for the child and to make whatever decisions the judge grants when the order is signed. An APR order does not permanently end the rights of the parents, but they can only have parenting time (visit) with the child as provided in the order. The judge's decision in an APR hearing will be made based on the best interests of the child.

Grandparents are able to file a court action asking for custody of a child if the child has been living with the grandparent for six months. The grandparent can also file the action within six months after the child leaves his or her home as long as the child had lived in their home for six months. Both of the child's parents must be notified of the hearing. The judge will decide what rights the parents have and what parenting time (visitation) the parents have. It is important specifically to ask the judge about clarifying who has the right to make decisions regarding the educational, medical, and religious needs of the child, since this authority is allocated separately in Colorado. The judge also may order the parents to pay child support to the grandparents to help meet the financial burden of raising their child.

What if I want a change in the custody (APR) order?

A custody (allocation of parental responsibility) order can be changed by returning to court and requesting a change. This can be done if the custodial parent or grandparent agrees to the change, or if the child has been integrated into someone else's family with the consent of the custodial parent or grandparent. If the parents and grandparent do not agree to a change in the custody/APR order, then the person who wants the change must ask the court to grant it. A contested change in APR and primary residence of the child can only be requested once every two years, unless the judge believes that there has been a change in the custodial parent or grandparent's circumstances which create a danger to the child's physical health or which significantly impairs the child's emotional development because of the environment in which the child is living.

What is a natural guardian?

Parents are the natural guardians of their children, either natural or adopted children. So, they do not need to go to court to be appointed as guardians and to have the authority to make these decisions. Anyone other than a parent needs a court order to be appointed as a guardian for a minor child (under age 18). To be the guardian of a disabled person over age 18, the guardian must be appointed by the court, even if the parent is the guardian.

How can a grandparent get an order for guardianship and how is this different from allocation of parental responsibility?

A legal guardianship is another way that a grandparent may get the authority to care for a child and make decisions on the child's care. This is an order that is issued by the probate court, instead of the domestic court, but it results in very similar authority about the child. Guardianship is granted by a court and gives the guardian full permission to make all decisions about a child except financial decisions and the right to agree to adoption. The guardian may care for the child, or arrange for someone else to provide care. The guardian is not legally responsible to support the child financially. If authority is needed to make decisions about the child's property and finances, the court may grant a conservatorship to the grandparent or someone else, as well as guardianship. A conservatorship is not needed for a grandparent simply to receive and spend child support for the child.

Guardianships are very flexible. Few laws define how they are used. Flexibility can be good or bad for the guardian and the parents. Since there are few laws saying how guardianship is revoked or changed, a judge has significant leeway when deciding these issues. A guardianship is an exclusive power, so it takes away the parent's rights to make decisions for the child and gives that authority to the guardian, within the scope of the guardianship order, until the guardianship is modified or terminated. Guardianship does not terminate the parent's parental rights. If circumstances improve for the parent, he or she can request termination of the guardianship and return of the child to the parent's care.

Guardianship can be granted either through the Colorado Probate Code when a parent is unable to care for his or her child, or the parent has died, or through the Colorado Children's Code when a child is dependent or neglected. A person with guardianship is issued a document called Letters of Guardianship. This document can be provided by the guardian to prove that he or she has the authority to make decisions for the child. Unless the guardianship is limited, this authority generally allows the guardian(s) to enroll the child in school, to consent to medical care, to cover the child on the guardian's health insurance policy, and other matters that would usually be handled by the child's parents. The guardian is required to file an annual report with the court about the child's situation and ongoing residence, medical care and educational arrangements.

What is a conservatorship? Is it the same as a guardianship?

A conservatorship is a court order (from the probate court) which makes one person (or a professional fiduciary, such as a bank trust department) in charge of management of another person's finances and assets, including their bank accounts, investments, and property. It is different from guardianship and, generally, the same person is not allowed to serve as both guardian and conservator. If the child has life insurance proceeds or a personal injury settlement or an inheritance, it is likely that a conservator will be appointed to manage the child's income and assets until the child is 21 years old. This is an exclusive power, not a shared power by the child and the conservator or the parent or guardian and the conservator. The conservator is required to file an initial financial plan, and then annual accountings with the court.

What is co-guardianship?

A co-guardianship is a shared guardianship between two people or entities, such as two grandparents. Sometimes, a family member (or other appropriate person) has a co-guardianship with the Department of Social Services, which is treated as joint custody between the grandparent and Social Services. All decisions must be made jointly. This method is most often used when a child has been involved in a dependency and neglect case and is not available for adoption but will not be returning to the parents. In some cases, Social Services will pay foster care payment to the grandparent during this arrangement. Many counties refuse this type of arrangement. If grandparents are interested in this approach in cases in which Social Services is involved, they should contact their grandchild's caseworker.

Why is adoption the most "serious" or "drastic" legal option for grandparent raising grandchildren?

Adoption is permanent. It forever changes the legal parent/child relationship. If the child's parents are dead, or have consented, or have had their rights terminated (so they no longer have a parent-child relationship with their child), then the child may be legally available for adoption. Adoption will make the child the legal child of the adopting parent or parents for all legal purposes, just the same as if the child had been born to those parents. The court will change the child's legal name and issue a new birth certificate. If the adopting parents divorce, they will have to pay child support for the child. The child can inherit from them. This is a total, final change of the legal relationship, forever.

How is adoption unique when it is the grandparents who want to adopt after a dependency and neglect case?

As in any case, adoption is only possible if both biological parents relinquish their parental rights or if parental rights are terminated through a court process. If parents relinquish their rights, they may name the grandparent as the successor custodian of their child. In dependency and neglect cases, the grandparent has the right to request permission to adopt, but so do foster parents and possibly other parties. It is important for grandparents to request this before the motion to terminate the parent-child legal relationship is filed. There is no requirement that the grandparent be notified of either the plan to terminate parental rights or of a grandparent's preference for placement, so it is very important for an interested grandparent to remain involved throughout the entire dependency and neglect process, if the child is the subject of a termination case. If parents file an appeal after their parental rights are terminated (which many do) it could be a year or two before the grandparents know whether they will be able to adopt. Grandparents do not have priority for adoption over foster parents or other long-term caregivers of the child. The court makes decisions based upon the best interests of the child.

How does kinship adoption work for grandparents?

Colorado has kinship adoption laws that apply to grandparents. If a grandchild has been living in the grandparent's home for one year or longer, and if the parents are deceased, have had their rights terminated, or the parents or legal guardians have consented, the grandparent(s) may petition to adopt the child. If the parents have not consented but if they have abandoned their parent/child relationship, the grandparents may also petition for adoption. Abandonment is presumed when the parents have had no contact with the child for at least one year or have failed without cause to provide child support for the child for at least one year. Of course, it is possible for one parent to consent and the other parent to abandon the child, and for the grandparents to proceed with adoption in those circumstances, as well. If grandparents are adopting, they will have to complete criminal record checks and related clearances before they are allowed to adopt, but a full home-study by Social Services or an adoption agency is not usually required by the court in kinship adoptions.

What are my rights as a grandparent caring for a grandchild to take leave from work for my grandchild's illness?

It may be difficult to take paid time off of work in cases of a grandchild's serious health condition and the grandparent may be entitled to take unpaid leave from work. Under the Federal Family and Medical Leave Act, the grandparent may qualify to take up to 12 weeks of unpaid leave per year to provide care for a serious health condition of the grandchild. This law applies only if the employer has at least 100 employees and the grandparent has been employed at the job for at least 12 months. The grandparent may also be entitled to family leave to care for the grandchild during the first year the grandchild is placed with the grandparent for adoption or foster care.

What is the Indian Child Welfare Act (ICWA)?

ICWA is a Federal law designed to protect the best interests of Native American children and to promote the stability and security of Indian tribes and Indian families. This act controls any matters surrounding child custody and requires the tribe be notified if the child is being placed outside the home for guardianship, foster care, or adoption, even if the placement is made by the birth parent. If there is the possibility that a child you are caring for may have Indian blood or Indian parents, it is VERY important that you contact an attorney who has experience in this area.

What visitation rights to grandparents have?

If the grandchild resides within the State of Colorado, the grandparent can seek a court order in the domestic court, establishing visitation with the grandchild. Grandparent visitation can be established in any of the following circumstances: where the grandchild's parents are divorced or legally separated, where the grandchild is not in the custody of one of his or her parents, or the grandchild does not live in the home of one of his parents, or where the grandchild's parent (child of the grandparent) has died. A grandparent is required to make a written request for visitation through the court located where the child lives. You may want to seek the help of attorney in filing the request. If the grandchild lives in a state other than Colorado, the law of the state where the grandchild resides will determine any right to grandparent visitations. Contact an attorney in that state to determine whether any rights to grandparent visitation exist.

Can grandchildren themselves request whom they live with? How old must they be?

This varies by state and by type of case. In Colorado, children do not have an automatic right to say where they want to live at any particular age in domestic or divorce cases, but their wishes are always one of the factors for the court to consider. But, children over 14 must consent to the appointment of a guardian and children over 12 must receive counseling and consent to an adoption. In dependency and neglect cases, new laws require the children to have access to the courts and for their wishes to be considered. Guardians and grandparents should go through the guardian ad litem to involve the grandchild in this decision, if the child has a legal representative in the case.

I feel that Social Services and the court repeatedly place grandkids back with harmful parents. Why does this happen?

When the Department of Social Services brings a dependency and neglect case, under the Colorado Children's Code, it is trying to meet two goals. These goals are not always consistent. The two goals, which sometimes compete with one another, are: protecting the safety of the child and preserving or reuniting the family. So, Social Services may recommend removal of the children in order to keep them safe and then recommend returning the children to the family, in order to preserve the family unit. In a dependency and neglect case, the court adopts a treatment plan for the parents, with input from Social Services, the parents, and the child's guardian ad litem. The goal of the treatment plan is to help the parents and the family get to be healthy enough that the children can return home and Social Services and the court can back out of their lives. Sometimes treatment plans work, but not always. This can cause some back-and-forth as the court tries to weigh the risks to the children of physical and emotional harm at home and from being removed from home. It is not always an easy balancing act for the court to perform.

Many grandparents will not live long enough or be physically able to care for a grandchild to adulthood. What is the best way for us to assure that the grandchild will be properly placed at early disability or death?

It depends upon the current legal authority the grandparent holds and the facts of the case. In most cases, the parents still have some parental rights, and might be the legally responsible parties to step in to care for their children if the grandparents are no longer available. The court is charged with making a decision for succession which is based on the best interests of the child. Here are four different answers for different situations, but the grandparents may wish to consult an attorney to discuss their own particular situation:

If the grandparents have adopted their grandchild, they are now the child's legal parents. They may complete either a Will or a Designation of Guardianship form to nominate successor guardians for their child. This nomination will receive priority consideration from the court if a guardian needs to be appointed.

If the grandparents are the legal guardians for their grandchild, they may seek appointment of another person as co-guardian, or may work with the guardianship (probate) court to appoint a successor guardian prior to the time of transition. The court must make the formal appointment of a successor guardian; the guardians cannot do that on their own, although they may nominate a successor.

If the grandparents have allocation of parental responsibility for their grandchild, the domestic court will have the authority to appoint a successor to handle decision-making and care for the child, if there is not another person (including a parent) who has this responsibility. This can be a dicey situation, since the parents or another person with whom the children have lived for 6 months (within the past year) are generally the only people who can request to be allocated parental responsibility for the child. One option is to seek a shared decision-maker or to clarify the succession issue through the court order ahead of time.

If the grandparents have been appointed agents via a power of attorney, they may appoint a successor agent, but their own authority expires in one year or less, and the parents always have the right to revoke the power of attorney at any time. The power of attorney issued by the parents to the grandparents can include the name of a back-up agent, which would be helpful in the short run, but not after the power expires in a year.

As a grandparent, can I consent to health care for a grandchild in my care?

A grandparent needs some kind of legal authority to consent to non-emergency medical care for a grandchild in his or her care. This could include a power of attorney that includes medical care decisions, allocation of parental responsibility for medical decisions, appointment as a guardian for the child, or legal adoption of the child. If the needed medical care is emergency care to save the child's life, then the hospital, ambulance, and EMT professionals will provide that care even without consent from an authorized adult.

The children whom I care for are getting ready to start school. Are there any special legal considerations for this transition?

As a grandparent raising grandchildren, it is very important that your legal papers which give you the legal right to care for your grandchildren include permission to make decisions about the education of the grandchildren. If this is not specifically stated, the birth parents will remain the only persons who can make decisions regarding any special education needs. This is true even if the Department of Social Services has custody of the children. Many school districts will not let you enroll a child in school with only the authority of a power of attorney. Often school districts require legal guardianship or allocation of parental responsibility regarding educational decisions.

I am a grandparent providing care for my grandchild. Where can I get affordable legal help?

Several organizations offer free legal help! Some good resources are Colorado Legal Services, which operates throughout the state, and lawyers who provide advice as a public resource, through a contract with The Office on Aging in your county. Also, in many areas of the state, the local bar association has a program for providing legal advice for community members, so you could call the bar association to ask.

Another resource is the State Judicial Administration website, which has forms for the public to use for certain court proceedings, including adoption, guardianship, and allocation of parental responsibility proceedings. Here is the link for the form site, although there is only limited information available about how to use the forms:

Many attorneys specialize in family law matters, and you may want to consult a private attorney to advise you or represent you in your efforts. Even if you do not choose to retain an attorney to represent you in your case, you may want to hire an attorney for an hour (or more) of coaching and advice. This is sometimes called "unbundled legal services." It can often be very useful to consult an attorney (either a private attorney or a "free" attorney available through one of the programs listed above) for advice before you jump into one of these legal arenas, so that you can focus your efforts on the most effective approach for your family's particular situation.

Can I adopt my grandchild without the support of an attorney?

Yes, you are certainly allowed to represent yourself in the Colorado court system. You are not required to consult or retain an attorney. When you represent yourself, you are "pro se." Even if you decide to represent yourself, you may decide to consult an attorney for a one-time advice session before you begin your case. Please read question 14Q, above, and the answer, to see if you seem to fit the qualifications for a kinship adoption and question 23Q, above, and the answer regarding legal resources available to you. Here is a link to the forms and instructions page for filing a kinship adoption in Colorado:

You will still need to comply with all relevant Colorado rules and laws, even if you are representing yourself.