By JODI SOKOLOWSKI
Buffalo Law Journal

Increasingly, grandparents are rearing their children's children, including in cases where drug addiction, mental illness, death or imprisonment have taken parents out of the picture.

According to 2006 Census data, more than 4.5 million children live in households headed by a grandparent. In many of these homes, often without the child's parents present, about 2.4 million grandparents are primarily responsible for the children's needs.

In New York, of the 297,239 children living in grandparent-headed households, 165,493 are living there without either parent present. About 143,000 grandparents in the state are responsible for their grandchildren living with them.

When grandparents are called upon by the state to temporarily take custody of their grandchildren, or when they voluntarily seek custody or visitation rights, there's a series of court actions they must take.

The Grandparents Advocacy Project offered through Erie County Family Court refers cases to a few area legal-aid nonprofits to help grandparents in court proceedings and direct them to support agencies. Legal Services for the Elderly, Disabled or Disadvantaged of Western New York assists grandparents older than 55 in securing temporary custody of their grandchildren, and Neighborhood Legal Services helps those 55 and younger.

Helen Zaffram, a Legal Services for the Elderly attorney, has seen more grandparents come to the project since she started working with it in 2006.

"There's clearly an increasing need for the services that we provide," she said.

Reasons for removal

When the state Child Protective Services department removes a child from parental custody because of abuse or neglect, a grandparent or next of kin is the first choice for temporary custody of the child.

"That's much cheaper for the county because grandparents are not foster parents under the law, and the law prefers keeping children with family," said Denis Scinta, a Lipsitz Green Scime Cambria LLP partner who handles custody arrangements and guardianships.

The most common reason for removing children from their parents, even if it's temporary, is drug and alcohol addiction. The 1998 census reported that 44 percent of children being cared for by grandparents were in that situation because of a parent's substance abuse.

Another 28 percent lived with grandparents because of child abuse, neglect or abandonment, 11 percent because of a parent's death and 4 percent because of divorce. Other reasons include a parent's illness or because the parent is jailed, hospitalized or institutionalized.

"Having grandparents step in almost always involves a lifestyle that the parents are involved in with crime or substance abuse," said David Shapiro, a Legal Services for the Elderly staff attorney. He recalls a case where grandparents took care of a child while the parents completed rehab and then were able to regain custody of their child.

"Grandparents seem to be more of the role of caregivers rather than usurpers. They would ultimately like to see their children parent their own children," Shapiro said. "It's (out of) a burden of love that they step forward."

Scinta added while the nuclear-family structure is "being decimated," the problem hits all races and socio-economic levels.

Two-part test

If parents who lose custody of their children don't complete a court-ordered list of tasks, called a menu, required for them to be reunited with their children, a grandparent can become a foster parent or seek full custody of the children. Becoming a foster parent enables grandparents to obtain aid for food and housing, whereas no state aid would be available if they adopted them.

But in order to secure legal custody - which is necessary for registering children for school or obtaining health care - grandparents must pass a two-part test. The first part involves proving that extraordinary circumstances exist, such as abuse, neglect or abandonment. Then, they have to prove that it's in the child's best interests to live with them full-time. That standard was intended to be difficult to meet in order to prevent relatives who have had little or no contact with children from obtaining custody in order to secure benefits, lawyers said.

Legal hurdles can arise when a parent is reluctant to give up custody, paternity is questioned or the child has already formed bonds with foster parents who have been approved to adopt.

"Just when you think the grandparent has custody and the dust settles, six months later the parents file a petition and we're right back at it again," Zaffram said, describing a common scenario.

Voluntary cases

In cases where the child isn't removed forcibly, grandparents can still voluntarily seek custody or visitation rights of their grandchildren, but must again prove that the child's best interests lie with them and not in foster care. That might happen when grandparents feel the child is not being adequately cared for or if one parent dies and the other does not permit the deceased parent's parents from seeing their grandchildren.

That can also happen in divorce cases where, for example, a mother who has full custody may refuse to let the paternal grandparents spend time with their grandchildren, even though they already have a pre-existing, positive relationship.

"Because of the increase of divorce, there's more awareness on (grandparents') ability to see their grandchildren," Scinta said.

However, if a child resides with a grandparent for at least two years, the caregiver doesn't have to prove that extraordinary-circumstance clause, as decided in 1976 by the state Court of Appeals in Bennett v. Jeffries, explained Family Court attorney referee Tracey Kassman.

Life after custody

After grandparents are successful in securing custody of their grandchildren, they need support on things like refreshing their parenting skills or catching up on modern-day issues such as peer pressure to use drugs or alcohol, perhaps from a support group that has weekly meetings and monthly outings.

"Imagine being 65, (raising) a 3-year-old and remembering what to do," said Zaffram, who said she'd like to see more resources made available, including low-income housing designed for area seniors raising their grandchildren.

A statewide program called the Kinship Navigator is designed to provide information and resources to kinship caregivers across the state. It can be reached at www.nysnavigator.org or 1-877-454-6463.