According to the U.S. 2010 Census, 13.1% of children in the state of South Carolina live in the households of grandparents or other relatives, and this number continues to rise. Of these roughly 57,000 children, approximately 24,000 have no parents present in the home (www.grandfactsheets.org SouthCarolina). Raising a grandchild can be rewarding and challenging all at the same time. Grandparents can provide emotional support, stability, and a nurturing environment for a child, but sometimes they too need help. Our state and many others have programs and organizations specifically designed to assist family members in these situations. (See http://www.aarp.org/relationships/friends-family/grandfacts-sheets/ for information about your state.)
It is also very important for grandparents and/or other family members to know their legal rights and responsibilities when caring for a grandchild. Legally, there are different custody arrangements that offer varying degrees of legal rights to grandparent caregivers. In South Carolina, Power of Attorney, Guardianship, Legal Custody, and Adoption all constitute different arrangements for custody of a relative or grandchild. Keep in mind that South Carolina does not recognize grandparent rights when one or both parents involved in the child’s life are deemed to be “fit”. Whether or not a parent is fit or unfit is a legal determination that will be made by the courts.
Below is a brief overview of different types of legal custody relationships in South Carolina.
Power of Attorney: Is a short-term arrangement that can be established without the involvement of the court system. A Power of Attorney is a written statement from the parent giving the grandparent or other family member authority regarding specific types of care and custody of the child. The parent may specify powers over such things as medical and educational decisions. The Power of Attorney needs to be signed before a notary public or an attorney and can be revoked (or taken back) by the parent at any time.
Guardianship: Is a formal legal relationship that is achieved through the Probate Court. As legal guardian you can have practically all of the legal rights and responsibilities as the child’s parent. Legal guardianship suspends the rights of the birth parents, but it does not terminate them. Parents can petition the Probate Court at any time to regain custody of the child.
Legal Custody: Is also a formal legal relationship that is ordered through a court process. Legal custody is different from guardianship because it is granted by a different court and thus different rules that apply. Legal custody may be ordered to relatives in DSS Abuse and Neglect cases, in petitions by family members in an action for custody of the child, or in other case specific circumstances. You should seek the advice of an attorney if you are pursing legal custody.
Adoption: Is a permanent arrangement making you the child’s legal parent with all the same rights and responsibilities. Adoption terminates the rights of the biological parents. This can be done voluntarily by the birth parents, through a relinquishment, or ordered by a judge in court. Once a parent’s rights are terminated, a family member can petition the court for adoption. You should seek the advice of an attorney if you are interested in an adoption.
** As each situation is unique, you should consult with an attorney regarding your circumstances and any questions you may have about your legal rights to custody.