The most challenging and daunting task that a new relative parent must undertake is the process of forming a legal relationship with their new child. This task is important because everything from taking the child to the doctor to enrolling them in school requires documentation from the biological parents or the court that states the role of the relative parent in the child’s life. While some relative care situations have been organized by the biological parents, other situations can be based on conflict and the process of obtaining legal authority can be complex. There are several different roads that relative parents can take in order to gain legal custody of the children and each of the options will be discussed in this section. Each option should be considered and chosen based on the situation of the family. It is recommended that before you undertake a complicated matter, such as a guardianship or adoption, you speak to a lawyer about your options and what actions need to be completed.
A Power of Attorney is a voluntary agreement signed by a child’s parents giving another person (grandparent, brother, sister, etc.) the legal authority to care for and make decisions on behalf of a minor child. This legal document must be signed in front of a Notary Public in order to be valid. The Power of Attorney has a maximum length of three years when kincare relationships are involved. Other documents that will be needed in addition to the power of attorney are:
Medical Consent Form: available through your primary care physician. Allows the caregiver to make important health decisions for the child in the absence of the child’s parent(s).
Immunization Record: an important document which shows the schedule for immunizations and which immunizations a child has received.
Evidence of Insurance: only required if the child will be covered by the parent's insurance policy.
Birth Certificate: may be required by some programs and activities the child may be involved in.
Pros and Cons: Obtaining a Power of Attorney is cost effective and can be achieved without the use of an attorney. However, this is a voluntary arrangement between the parents and the caregivers and the document can be revoked at any time by the child’s parent(s).
According to Idaho statutes, any person interested in the welfare of a minor may petition the court for (legal) guardianship of the child. In order to be appointed as a child’s guardian, the petitioner must show to the court’s satisfaction, that either all parental rights have been terminated or that the child's parents are unable to provide a fit and stable home environment. Facts supporting the appointment of a guardian might include a combination of the following:
(1) The child currently resides with the De Facto Guardian and not with the parents. A De Facto Guardian is defined as an individual who has been the primary caretaker and financial provider of a minor child. This relationship must exist for at least six months if the child is under the age of three or one year if the child is three years of age or older;
(2) The child’s parent has not had contact with the child for a significant period of time (weeks or months) without explanation. Idaho law states that if a parent fails to maintain a normal parental relationship for a period of six months the child may be considered abandoned;
(3) The parent has been unable to maintain consistent employment; and/or
(4) The parent has many different partners or other people living in the parent’s home who may be a danger to the child.
Pros and Cons: The advantage of a guardianship is the broad powers given to the guardian that allow them to make all parental decisions for the child. Guardianships are only revocable through a similar guardianship order of the court, and create stability in the relationship with the child. Obtaining a guardianship is not an easy process, but produces more parental rights and protections than the Power of Attorney alone.
Under Idaho law any adult may petition to adopt a child as long as they have lived in Idaho for at least six months prior to filing the petition to adopt. The process of adopting a child starts with the termination, by the court, of the parent’s rights. In order for termination to occur any of the following must be proven in court:
(1) The parent has abandoned the child or has not maintained a relationship with the child for six months (prima facie evidence of abandonment);
(2) The parent has neglected or abused the child;
(3) The parent is unable to perform the duties of a parent;
(4) Termination of parental rights is in the best interest of the child; or
(5) The parent is incarcerated with no possibility of parole.
Each parent also has the option of voluntarily terminating their parental rights without a trial. The judge will determine if the parent’s consent is truly voluntary and that the parent is fully informed of the consequences of terminating their parental rights.
The next step in the adoption process is an investigation of the potential adoptive parents in order to make a recommendation to the court. This investigation is typically referred to as a Home Study and can be done by the Department of Health and Welfare (if the child is in foster care), by a private adoption agency, or Certified Adoption Professional. The process ends with a hearing that includes all interested parties in which the court makes a decision based on the best interest of the child. If the court decides in favor of adoption it cannot be revoked or changed with rare exceptions such as:
(1)
demonstration that the parents were under duress to voluntarily terminate their rights;
(2)
that mandatory provisions of the Indian Child Welfare Act were ignored.
At this point the adoptive parent becomes the child’s legal parent with all the rights and responsibilities of parenthood by birth. From this point on, any benefit eligibility will be based on the family income.
Relatives adopting special needs children may be eligible for one-time or ongoing adoption assistance. Adoption assistance must be in place prior to the finalization of the child’s adoption or the child will not be eligible. Special needs is defined as:
(1)
a child whose parent's parental rights have been terminated and the child has a physical, mental, emotional, or medical disability or is at risk of developing such a disability;
(2)
the child’s age makes it difficult to find an adoptive home;
(3)
the child is a member of a sibling group who prefer not to be placed apart;
(4)
there have been reasonable but unsuccessful efforts to place the child for adoption without adoption assistance. Children who have significant emotional ties with the foster parent or relative adopting the child may be exempt.
For further information regarding the adoption assistance programs and specific eligibility criteria, contact your local Department of Health and Welfare, Children and Family Services office.
Legal Forms and instructions can be found on the Ada County Court Assistance Office website. Even though these forms are only meant for use in Ada County they can be used statewide in most situations. Before you begin the legal process it is recommended that you consult the advice of an attorney. If you cannot afford an attorney, you may be able to pay an attorney to review your case before it goes to trial for a fixed or reduced cost. Contact the Idaho State Bar Lawyer Referral Service (208-334-4500) for more information about this option.
The forms for Parental Power of Attorney and Guardianship of a Minor are located HERE. If you are filing for guardianship the first document to read is titled: GCMPi Inst 1-1 Filing Guardianship of Minor. These are step by step instructions to fill out the guardianship forms. If you need further assistance you can contact the court assistance office in your county. Contact information for statewide court assistance offices can be accessed HERE.
Idaho Volunteer Lawyers Program
This program organized by the Idaho State Bar Association provides legal council to low income families who cannot afford to hire an attorney. For more information about eligibility, the type of cases IVLP accepts, and how to apply consult their website HERE.
Idaho Legal Aid
Idaho Legal Aid is a non-profit statewide program that provides legal services to low income people through advocacy and education. If you are a Senior (60 or older) and dealing with a legal problem you can call the Senior Legal Hotline for legal advice. They can handle any civil legal dispute.
Senior Legal Hotline
(866) 345-0106 or Español (866) 954-2591 (toll free)
Hours of Operation:
Monday-Friday* 9:00am - 12:00pm and 1:00pm - 4:00pm (Mountain Standard Time)
*Excluding holidays and other office closures.
Visit the Idaho Legal Aid Website HEREfor more information about eligibility and what kind of help you can expect from the service. |
= external link