“Grandparents are the safety net for the children of today.” The Honorable Wilmont Sweeney Former Presiding Judge Alameda County Juvenile Court MANUAL FOR GRANDPARENT-RELATIVE CAREGIVERS AND THEIR ADVOCATES with a special section on California Resources 3rd Edition January 2002 Legal Services for Prisoners with Children 1540 Market St. #490 San Francisco, CA 94102 415/255-7036 www.prisonerswithchildren.org [email protected] HISTORY OF THE GRANDPARENTS MANUAL This Manual was originally written and edited in 1994 by River Ginchild and Ellen Barry of Legal Services for Prisoners with Children. It was based in large part on a previous publication of LSPC, the Manual for Grandparents and Caregivers (most recently updated in l993). The primary authors and editors of that Manual included: Ellen Barry, Nancy Jacot-Bell, Carrie Kojimoto, Gabriela Lujan and Dorsey Nunn of the staff of LSPC (2nd edition) and Ellen Barry, Harriette Davis, Monica Freeman-Brennan, Nancy Jacot-Bell, Kirby Randolph, Chela Richheimer, Keriena Yee and Linda Yu (1st edition). We also wish to acknowledge contributions from: Jenny Walter of Legal Advocates for Children and Youth and Sandy Weiner of Income Rights Project. This Third Edition was revised and edited by Staff Attorney Cassie Pierson, Supervising Attorney Lucy Quacinella and Administrative Director Karen Shain, all of Legal Services for Prisoners with Children, with the assistance of Legal Interns Rachel Meeropol, NYU Law School, Josh Bowers, NYU Law School, and Nicole Hirsch, French-American High School. We also want to acknowledge the invaluable contributions of Bay Area Legal Aid through their An Advocates Guide to CalWORKs and the Western Center on Law and Poverty through their Cal- WORKS Manual. The third edition of this manual is dedicated to the memory of CELESTINE GREENE founder of Grandparents As Second Parents who taught us all the importance of supporting the grandparents, great-grandparents and parents as well as the grandchildren, with the hope that all children — everywhere — can live in peace and safety HOW TO USE THIS MANUAL This manual contains references to applicable statutes, illustrative cases, charts to supplement the text and an extensive statewide resource guide. This is by no means a complete discussion of all the case law regarding extended family members and non-relatives who care for children. Please keep in mind that each family situation is unique. However, we believe it will give you a realistic idea of how the California courts look at family situations that may be similar to your own. A Note on Reproduction: LSPC is interested in the widest distribution of this material. You are welcome to make photo- copies of this material but, if you do so, please copy the manual in its entirety and please do not charge for copies. For questions about this manual, please contact Legal Services for Prisoners with Children at 415-255-7036; fax: 415-552-3150; [email protected] 1540 Market St., Suite 490, San Francisco, CA 94102 © Legal Services for Prisoners with Children, 2001 PREFACE to the SECOND EDITION Relationships between parents and children and grandparents and grandchildren are a complex and precious thing. While it is essential that you take all steps to protect and care for your grandchildren, it is also important that you make all efforts to support the children's relationships with their parents. As much as you may be angry and resentful of your own adult children for what you feel are their failings as parents, remember how difficult parenting can be. In addition, although you may have legitimate concerns about your adult children, anger and animosity among you and your children will only hurt and confuse your grandchildren. All parties should try to come to some reasonable arrangement of custody and visitation which is best for the children. Courts can very rarely "fix" a complex family situation. Try to have a constructive dialogue with your grandchildren's parents and others involved in the situation. If you are unable to talk to each other calmly, try to enlist the help of an informal mediator, such as a trusted family friend, a counselor or teacher. Use the courts only as the last resort and only in a way that will be ultimately beneficial to the children involved. River Ginchild Ellen M. Barry TABLE OF CONTENTS INTRODUCTION ........................................................... 1 GUARDIANSHIPS .......................................................... 9 What is a guardianship? .................................................. 9 Why would I want to become a legal guardian? ............................... 9 Is there a way to set up a guardianship in advance? ............................ 10 What are my rights and responsibilities as a guardian? ......................... 10 How do I establish a legal guardianship for this child? ......................... 10 I am not a relative of the child. Can I become a guardian? ...................... 11 What can I do if I cannot pay for court fees when I apply for guardianship? ........ 11 Where do I get an application for the fee waiver? ............................. 12 During the period of the guardianship, what visitation rights do the minor's parents have? ................................................... 12 What rights do I have as the legal guardian if the parent refuses to be cooperative? .. 13 What can I do if I must keep the parent away from the child? ................... 13 What if I oppose the return of custody to the parents? ......................... 14 How do I have a guardianship terminated? .................................. 15 DEPENDENCY PROCEEDINGS ............................................. 17 Under what circumstances does a child become a dependent of the court? ......... 17 What steps can be taken to avoid a child becoming a dependent of the court? ...... 17 What other services are available for grandparents to be involved in? ............. 18 If a grandchild is removed from a parent's custody and made a dependent of the court, can the child be placed with his or her grandparent? ................ 18 What should a grandparent do if he or she wants to be considered as a relative placement? ..................................................... 19 How do dependency proceedings affect Native American children? .............. 23 Can a grandparent and other relative caregivers participate in a juvenile court proceeding? .................................................... 23 I am taking care of a dependent child, although I am not a blood relative of the child or a foster parent. What participation am I allowed to have in the dependency proceeding? .......................................... 24 If I am the foster parent of the dependent child, do I have the right to participate in the proceedings? ................................................. 26 What happens if the child is involved in proceedings in another state? ............ 27 GETTING A CHILD OUT OF A SHELTER .................................... 29 What happens if the parent is arrested while away from the child? ................ 29 What do you do if the child is placed in an emergency shelter? .................. 29 What happens to children if a relative cannot pick them up within 72 hours? ....... 29 Who needs to be present at the detention hearing? ............................ 29 What happens at the jurisdictional hearing? ................................. 30 What happens at the dispositional hearing? .................................. 31 If my child is an incarcerated parent, what rights does he or she have once my grandchild is placed in foster care? .................................. 32 What happens at a periodic review hearing? ................................. 33 If my adult child is incarcerated, how does he/she get to the juvenile court hear- ing? ........................................................... 34 What preparation is needed for the juvenile court hearing? ..................... 34 What happens at the permanency planning hearing? ........................... 34 How does a parent get the child back once the parent returns from prison? ......... 36 VISITATION RIGHTS OF GRANDPARENTS ................................. 37 How do courts decide cases involving the care of children? .................... 37 Can a grandparent get visitation rights when the parents divorce, legally separate, or get an annulment? ............................................. 37 What must I do to get visitation? .......................................... 37 Why does the court order mediation? ...................................... 37 What will happen at the mediation? ....................................... 37 Do I have visitation rights in these proceedings if I am not the child's grandparent? .. 38 What if I already have an order giving me visitation rights with my grandchild and the parent is trying to undo the order to prevent my visits? ................ 38 Can a grandparent whose own daughter or son has died be granted visitation rights with the grandchild? ............................................. 40 Under what other situations might a grandparent be granted visitation? ............ 40 How are a grandparent's visitation rights affected when his or her adult child's parental rights are terminated? ...................................... 41 What visitation rights does a grandparent have when the parents of the minor child were not legally married? ..................................... 41 If grandparents suspect that the child's