LEGAL OPTIONS 

Once a grandparent has made the decision to care for their grandchild, there are a number of different ways in which care can be assumed. Each way presents different possibilities, in terms of the programs and services one would be eligible to receive.

PHYSICAL CUSTODY

A grandparent who has only physical custody of the child does not have legal rights, although the court may be favorably disposed to the grandparent should a custody hearing take place. With physical custody, the caretaker may be eligible for Transitional Aid to Families with Dependent Children payment assuming the person is otherwise eligible.

GUARDIANSHIP

In a guardianship situation, the grandparent may be granted legal custody of the grandchild through a court process. The guardian is therefore generally able to make medical and financial decisions for the ward. In a Department of Social Services sponsored guardianship a child may continue to receive subsidy payments, in an amount equal to that of foster care payments.

CUSTODY

Custody is granted through a court process. A child is taken into custody by DSS or a grandparent that petitions the court for removal from of the children from their parent's home in order to prevent or stop abuse and neglect. In some cases the parents agree to give custody to the grandparents or the state. In cases where the parent contests the removal of his or her children there will be a hearing to determine the fitness or unfitness of the parents.

ADOPTION

Adoption means the child is formally (legally) adopted. This process is done through the courts and requires an attorney to represent both the child and the adoptive parent. It may also require testimony that the biological parents are unfit. Once adoption is completed, the adoptive parents assume the rights and responsibilities of biological parents. The family/child may continue to be eligible for some financial and/or MassHealth services via the Adoption Subsidy Program if the child was adopted through DSS. This is a separate approval system completed prior to the legalization of the adoption.

FOSTER CARE

If a grandparent chooses to become a foster parent to his/her grandchild, it will be as a restricted substitute care provider. When DSS has care or custody of the child, this means going through the screening and approval process with DSS and entitles the family to additional services: financial subsidy, MassHealth, and case management services. The child/family is eligible for these services regardless of caretaker income.

Some grandparents may become involved with the Department of Social Services when assuming care for a grandchild. DSS is the state agency which is mandated by law to respond to reports of child abuse and neglect, and provide services to families and children. The goal of DSS in working with children is family reunification, or permanency planning (e.g., adoption or guardianship) for the child when reunification is not possible.

A child may be referred to the Department of Social Services in one of three ways:

A family member may file an application with DSS requesting specific action services.

A CHINS (children in need of services) petition may be filed in court.

DSS has investigated a report of suspected abuse or neglect, and the child/family has been determined to be in need of assistance.

When a child is determined to be in need of placement with someone other than the parents, the Department of Social Services looks to relatives first: grandparents, as well as other relatives. The caretaker arrangement may then fall into one of several categories.

If the child has been referred involuntarily to DSS the child can still be placed with the grandparents. This would mean that the grandparents are considered to be foster parents, or "restricted substitute care providers", (approved only for particular relations). These placements are often referred to as "Kinship" placements. If the grandparents wish to be considered as caregivers for non-related children as well, they may apply to become foster parents, and go through foster parent training. 

Whether the grandparent is acting as a foster parent or a restricted substitute care provider, the child will be eligible for MassHealth, and for foster care payment benefits, and services. This is true regardless of the caregiver's income.

If the child is receiving DSS services through voluntary referral and is living with the grandparents, he or she may receive either the foster care payment benefit or the Transitional Aid to Families with Dependent Children (TAFDC) payment but not both. In order for DSS to provide payment, the child must be in the care of DSS via a voluntary placement agreement, or in the custody of DSS via a court order.

If the grandparents have assumed care for the child and DSS is not involved, the grandparent caregivers are eligible to receive the TAFDC payment and MassHealth for the child. The grandparents' income has no bearing on this eligibility. The TAFDC benefits are only for the grandchild. In instances where DSS is involved with the child, a social worker will visit the home on a monthly basis, there will be meetings at regular intervals, and the child may be eligible for additional services.