In an ideal world, children would be raised by both of their parents in loving and supportive homes. We all know this is not always a possibility. In situations of divorce, children often live with one parent, known as sole custody, or split time between each parent, known as joint custody. Unfortunately, there are also circumstances in which neither parent is willing or is fit to have custody of their child, which could result in a non-parental custody order. When this occurs in Kansas, there are a few options for determining who will care for the child.
What Is an Unfit Parent?
Naturally, no parent is perfect, and the court understands this. However, a judge does want to ensure children are in safe and healthy environments when considering child custody. Legally, an unfit parent is defined as a parent who fails to provide proper guidance, care, or support. A parent can also be deemed unfit if neglect, domestic violence, or substance-abuse issues exist. Ultimately, it is up to a judge to determine whether a parent or parents are fit to care for their child.
When a judge is determining whether parents are fit to have custody of their child, they will consider what is in the best interest of the child. Courts focus on ensuring children are healthy and safe in their guardian’s care, but additional factors can influence a decision. A judge evaluating a parent may consider:
- The level of the parent’s involvement in the child’s life
- History of abandonment, alienation, or neglect
- How a parent navigates conflicts with the child and how they help the child navigate conflicts between themselves and others
- Whether age-appropriate rules and restrictions are in place, such as an appropriate bedtime and limiting access to age-inappropriate media (TV, video games, etc.)
- The ability of a parent to provide adequate shelter, food, and clothing
Who Cares for the Child When Both Parents Are Deemed Unfit?
Overall, biological parents have the predominant right to custody of their children unless they are deemed unfit or unwilling to care for their children. In Kansas, non-parental custody may be granted if both parents are deemed unfit or if a child needs care for another reason. Other situations which may require non-parental custody include:
- Abandonment by both parents
- Death of both parents
- Incarceration of both parents
- The military deployment of custodial parent(s)
If a child has a relationship with a grandparent, and that grandparent is fit to care for a child, they are often placed with them when non-parental custody situations arise. When a child is placed with a grandparent, that is considered non-parental custody. If a child does not have family members who can fill this role, they may be placed into the foster care system.
As we’ve already discussed, grandparents are often the first consideration as guardians when it comes to non-parental custody. When a child is removed from the custody of both parents in Kansas, grandparents who request custody are legally required to receive substantial consideration from the court when new custody arrangements are being made. At first, non-parental custody orders are temporary. For grandparents who want permanent custody of their grandchild, it is important to establish their legal rights.
If you are a grandparent of a child in Wichita for whom you wish to obtain permanent custody, contacting an experienced Kansas family law attorney will be a valuable step. Child custody laws are complex, and attempting to navigate a case on your own can lead to big mistakes. Depending on the situation, there are different avenues for grandparents to consider when it comes to gaining custody of their grandchildren.
- Power of Attorney: If you have the consent of your grandchild’s parents to temporarily take custody of the child, getting a power of attorney document notarized is usually a sufficient option. This works well in situations where a custodial parent, or parents, are deployed in the military, hospitalized, or away from the child for a planned amount of time.
- Legal Guardianship: When a longer-term solution is required, grandparents can consider securing legal guardianship of their grandchild. Biological parents may or may not consent to legal guardianship, depending on the situation. In some cases, when parents are aware they are unfit to parent, such as while going through an addiction or mental health crisis, they may willingly grant legal guardianship to the grandparents.Even if parents do not consent, grandparental legal guardianship can be obtained if the court considers parents unfit and deem the child is in need of care. Guardianship is not permanent, however. Once the situation that required guardianship is resolved, the guardianship can be terminated, and the grandparents will no longer have legal authority over the child.
- Adoption by a Grandparent: If grandparental custody is expected to be permanent, pursuing grandparent adoption may be a good option. Not only does this ensure permanent custody, but it also allows the child rights to inherit an estate and collect survivor benefits from Social Security if their grandparent dies, which could be crucial for protecting their future in the place of having the support of their parents as a young adult. It is important to understand that adoption is permanent and completely absolves the natural parents of their rights and their obligation to support the child financially.
Contact a Family Law Attorney for Help
If you are a grandparent or loved one of a child unable to live with either of their biological parents, consider contacting the professionals at Stange Law Firm to learn about your options. We have many years of experience in family law and understand the sensitive and urgent nature of child custody cases. You are likely experiencing a significant amount of stress while worrying about the well-being of the child in your life, and we know they deserve to be cared for by someone who loves and cares for them if their parents are unfit or unwilling to handle the task. Contact us to schedule a consultation and learn how we can help.