Grandparent POA

[janM]

Soc, I wrote you a while back about having a POA vs filing for custody under the new Ohio law:
http://www.legislature.state.oh.us/bills.cfm?ID=125_HB_130

You advised me that if I were to file for custody of my grandson, I would have to nullify the POA because I would no longer be acting on the parents' behalf. Makes sense to me.

Under the rules of the law, after filing another POA (which I forsee doing this summer), which is good for a year only, court will schedule a hearing to determine if a second POA is in the best interest of the child.

1. I know you are probably not familiar with Ohio law, but do you know if it would be a conflict under the POA if I asked to be added as a party to the case (similar to Defacto custody in other states) with equal legal standing with the parents?

This new grandparent law seems to come up just a bit short in that it doesn't grant legal custody, only physical. It enables me to do everything a parent can do except give permission for him to marry, or be adopted. I guess what I'm looking for is joint legal custody with them.

Thanks in advance for your reply.

[socrateaser]

>1. I know you are probably not familiar with Ohio law, but do
>you know if it would be a conflict under the POA if I asked to
>be added as a party to the case (similar to Defacto custody in
>other states) with equal legal standing with the parents?

I believe that the grandparent has a legal duty to inform the juvenile court if the grandparent is involved in litigation involving the child(ren)'s parents. There appears to be no statutory penalty for becoming a party, however, a court might void the POA if it were convinced that conflicting interests were in play.

It's a new law and it hasn't been litigated over much, but, you would almost certainly need to show that all of your actions were in the child's best interests. Otherwise, you may find yourself getting sued by the parents for misrepresenting your intentions in the POA.

[janM]

What I would like to do is ask the court to put the same stipulation in place for terminating the POA (if the child moves out) as there is for instituting a second one - have another court hearing.

After all, if they want to determine if it's in his best interest to continue living with his grandparents, surely the court would want to know if a change of circumstances, such as moving to dad's house (he has legal custody), occurs. Since it was put in place due to Dad's inability to support or parent his son, I would like the court to ask him if that had changed.

In a normal custody case, when a parent has had physical custody for a year or more, as we have, the burden is on the NCP to show a change of circumstances in the child's life. Moving back with Dad would only involve a change in Dad's situation and would involve uprooting the child from the home he's been in since Dad got custody 3 years ago.

I would argue that the same burden applies here, whether the g'parents have any rights or not, if they really are concerned with best interest.

Sorry to rant. Thanks for the reply.

[socrateaser]

>In a normal custody case, when a parent has had physical
>custody for a year or more, as we have, the burden is on the
>NCP to show a change of circumstances in the child's life.
>Moving back with Dad would only involve a change in Dad's
>situation and would involve uprooting the child from the home
>he's been in since Dad got custody 3 years ago.
>
>I would argue that the same burden applies here, whether the
>g'parents have any rights or not, if they really are concerned
>with best interest.

It appears that the Ohio law was intended to avoid this sort of outcome, by giving the parent appointing the guardian some protection from the guardian wanting to retain custody after the POA terminates. Knowing family law courts, however, I'm fairly certain that your argument would be given great weight. Then, if it were appealled and the appellate court affirmed in your favor, that would pretty much send a message to every parent in Ohio to never use the POA process, or risk permanently losing custody.

[janM]

I am all for fit parents keeping their rights intact, and my hope is that my son eventually gets it together enough to raise his son on his own.

What I am against is the phenonenom of "layaway kids", whose parents, for whatever reason, are unable or unwilling to be full-time parents and leave them in the care of others while they live their lives. Some never do get their lives in order, but at some point they think they are ready for the task and take the child away to a questionable environment.

In any change in custody there is possilbility of it becoming permanent. All I would ask for, in a perfect world (besides perfect parents), would be an "evaluation" of the parent's situation before the child is taken away from a stable home that in some cases has been the only home since infancy. We cringe when we hear of adopted kids who, due to a clerical mistake, are taken from the only parents they have known to live with a bio parent because parents' rights supercede everything. Grandparents face that possibility all the time.

I would welcome my grandson's return to his Dad if I (and the court) was sure that my son was up to it. We grandparents (and there are a LOT of us) raising our g'kids are NOT child snatchers. We had no intention of spending our "golden years" raising another generation. We do it to keep our grands safe and secure and loved.

Sorry to ramble...
This new law is great. It serves a very real purpose and has enabled me to properly care for my GS. I wish there was no need for such a law.

[janM]

I was at the webpage that I referred you to, and found a bill analysis of the law that I found very interesting...

Second or subsequent power of attorney or caretaker authorization affidavit

The act provides that if a second or subsequent power of attorney or caretaker authorization affidavit regarding the same child is created or executed under the act, the person who created or executed it must file it with the juvenile court of the county in which the grandparent who is designated as attorney in fact or who executed the affidavit resides or with any other court that has jurisdiction over the child under a previously filed motion or proceeding.  On filing, the court must schedule a hearing to determine whether the power of attorney or affidavit is in the child's best interest.  The court must provide notice of the date, time, and location of the hearing to the parties.  This notice must also be given to the parent who is not the residential parent and legal custodian unless that parent is prohibited from receiving a notice of relocation under Ohio law, the parent's parental rights have been terminated by order of a juvenile court, the parent cannot be located with reasonable evidence, or the power of attorney was created by both parents.  The hearing must be held within ten days of the filing of the power of attorney or affidavit.  At the hearing, the parties and the non-residential parent may present evidence and be represented by counsel.  (R.C. 3109.76 and 3109.77(A) and (B).)

The act provides that, at the conclusion of the hearing, the court may do any of the following that it determines is in the child's best interest:  (1) approve the power of attorney or affidavit, (2) issue an order terminating the power of attorney or affidavit and ordering the child returned to the parent, guardian, or custodian, or (3) treat the filing of the power of attorney or affidavit as a petition for legal custody and award legal custody to the grandparent who is designated as attorney in fact or who executed the affidavit.  If the court approves the power of attorney or affidavit, it remains in effect until otherwise terminated under the act's provisions.  If the court issues an order terminating the power of attorney or affidavit, but the child's parent, guardian, or custodian cannot be located, the court is required to treat the filing as a complaint that the child is a dependent child.  (R.C. 3109.77(C).)[11]
The act requires the court to conduct a de novo[12] review of an order issued under this provision if the parent who is not the residential parent and legal custodian (1) did not appear at the hearing from which the order was issued, (2) was not represented by counsel at the hearing, and (3) filed a motion with the court within 14 days of receiving notice of the hearing.  (R.C. 3109.77(D).)

I was wondering what the court's options were if they found a second POA to be NOT in the child's best interest. Now I know. Number 3 is intriguing. Number 2 makes no sense because if the parent was fit, he wouldn't be asking for another POA.

We'll see if we need another one or not.

[socrateaser]

The text of the analysis is permissive, i.e., "The act provides that, at the conclusion of the hearing, the court may do any of the following...". The word "may" gives the court complete discretion to do anything it wants, including, but not limited to, the various procedures suggested under the analysis. Thus, the analysis provides guidance, but no guarantee, because the court can do something entirely different.

My original thoughts remain, i.e., this is a very new law with no appellate court interpretation. As such, a trial court remains fairly unbounded in its discretion to act in what it believes to be the child's best interests. I think that if you wish to attempt to gain permanent custody, that the longer you exercise actual physical custody over the child, the better your chances become. However, it's quite likely that you will need to tell the court what you want, and how you interpret the law, because the judge may have no experience with any second-time POA filings.

Frankly, I doubt that you would ever be sued for breach of fiduciary, because the real parent in this case does't appear to want to exercise custody, and probably would never seek a legal resolution.

But, it's still the wild wild west because there's no history behind the law.