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Grandparents’ Caretaker Affidavits

Grandparents’ Caretaker Affidavits

We blogged recently about Powers of Attorney which parents could give to Grandparents authorizing the Grandparents to care for children (including enrollment in schools and medical care, etc.)  Now we would like to discuss what are called “Caretaker Affidavits.”

What if a grandparent has a child living with him/her and the grandparent needs to get the child into school or needs to get medical care for the child, but does not have a power of attorney to do so?

O.R.C. 3109.65 Caretaker authorization affidavit–  provides potential help in this situation.

This Ohio Revised code section states generally that if a child is living with a grandparent and the grandparent has made reasonable attempts to contact the child’s parents (or guardian or custodian) but has been unable to contact them, the grandparent can obtain the authority needed to care for the child, and exercise custody and control of the child.

The statute provides that the grandparent need not attempt to locate the “father” of a child if paternity has not been established  and need not attempt to locate any parent who is prohibited from receiving a notice of relocation (when there is already an order of “custody” from a court). If a parent’s rights have been terminated by order of a juvenile court, the grandparent need not attempt to locate that parent either.  WARNING: Consult with an attorney regarding issues such as “whether paternity has been established” or “where there is an order of ‘custody” since these are “legal” concepts and may not mean what a non-attorney thinks they mean.  NOTE:  A Caretaker Authorization Affidavit cannot not be executed if there is an action to appoint a guardian for the child, or an action to have the child adopted or the child is subject to a juvenile proceeding regarding custody or an action regarding placement of the child or the child is subject to a temporary custody order under 2151.22 of the code or if parental rights regarding the child are being litigated in a proceeding for divorce, dissolution , legal separation or annulment.

Authority obtained under this section of the Ohio Revised Code, presuming that the mandates of the section are followed correctly, includes the authority to enroll the child in school and discuss the child’s educational progress with the school personnel.  This authority also would enable the grandparent to consent to health care for the child.   However, the statute specifically indicates that  the filing of the affidavit needed to obtain Caretaker Authorization does not affect the rights of the child’s parents, guardian, or custodian regarding the care, physical custody, and control of the child, and does not give the grandparent legal custody of the child.

To obtain the authority we are discussing here, the grandparent with whom the child is living would need to execute a signed, notarized “Caretaker Authorization Affidavit” in compliance with 3109.67 of the Revised Code and file it in the proper court or courts—as provided by the Revised Code. Forms are provided in the Ohio Revised Code but one should consult with an attorney before attempting to take advantage of the benefits of this section of the law. In fact the form comes with the following language, “WARNING: DO NOT SIGN THIS FORM IF ANY OF THE ABOVE STATEMENTS ARE INCORRECT. FALSIFICATION IS A CRIME UNDER SECTION 2921.13 OF THE REVISED CODE, PUNISHABLE BY THE SANCTIONS UNDER CHAPTER 2929. OF THE REVISED CODE, INCLUDING A TERM OF IMPRISONMENT OF UP TO 6 MONTHS, A FINE OF UP TO $1,000, OR BOTH.”

Caretaker Authorization Affidavits terminate when:

  1. The child ceases to live with the grandparent who signed the form;
  2. The parent, guardian, or custodian of the child acts to negate, reverse or otherwise disapprove  (by delivery to the grandparent of a written notice of negation) an action or decision of the grandparent who signed the affidavit AND the grandparent returns the child to the parent, guardian or custodian OR fails to file a complaint for custody within fourteen days; or
  3. The affidavit is terminated by a court order; or
  4. The child dies; or
  5. The signing grandparent dies.

If the affidavit is terminated other than by death of the signing grandparent, the grandparent must notify certain persons and the appropriate court(s), per the statute, within one week.

At the Law Offices of William L. Geary, Co., L.P.A., we pride ourselves on excellence in representation.  Call us for a consultation if you have a family law matter about which you have concerns.  (614) 289-1227. Also, check out our website for other helpful links and information at www.columbusfamilylawyer.com

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