How Does a Grandparent Get Temporary Custody of a Grandchild Whose Parents are in Jail in Ohio?
Full Question:
Answer:
A power of attorney, such as OH-P007 (link provided below) may be used to appoint a grandparent as caretaker of a minor for up to one year. If the child is to reside with you for longer than a year, then a temporary guardianship would be required. However, pending custody proceedings may prevent it from being effective.
A power of attorney is signed by the person whose affairs will be handled (the principal) by the appointed agent. In order to create a valid power of attorney, the principal must have the capacity to understand the nature of the act and its consequences. A person at death's door may lack capacity to create a valid power of attorney. A power of attorney ceases to be effective at the death of the principal. In such a case, a guardianship may be created by the court for someone else to be appointed by the court to handle the incapacitated person's afffairs. A guardianship is a more involved and expensive procedure.
A power of attorney is a legal instrument that individuals create and sign that gives someone else the authority to make certain decisions and act for the signer. The person who has these powers is called an "agent" or "attorney-in-fact." The signer is the "principal." As a principal, if the principal's decisions conflict with those of the agent, the principal's decision will govern, assuming that the agent confers with the principal prior to taking an action. If an agent has acted on the principal's behalf and acted within the scope of authority granted by the power of attorney, then the principal may be obligated by the terms and conditions of his actions.
The person designated to be the agent assumes certain responsibilities. The agent is obligated to act in the principal's best interest. The agent must always follow the principal's directions. Agents are "fiduciaries," which means that the agent must act with the highest degree of good faith in behalf of their principals. The agent must keep his money separate from the principal's; keep detailed records concerning all transactions he engages in on the principal's behalf; not stand to profit by any transaction where the agent represents the principal's interests; and not make a gift or otherwise transfer any of the principal's money, personal property, or real estate to himself unless the power of attorney explicitly states he can do so. An agent who acts against the principal's interest for his own gain, or acts outside the authority granted in the power of attorney, may be held personally liable. If an agent acts within his authority in the agent's best interest, the agent won't be personally liable for debts unless the agent has a separate agreement, such as a co-signer agreement, in regard to the debt.
If the agent has authority for financial matters, bills owed, such as medical expenses, should be paid by the agent if the principal is unable. The agent may also raise any defenses or offsets against creditors' claims.
The terms of the power of attorney govern the extent of the agent's authority. A power of attorney may be limted so that it only authorizes action to be taken for a specific transaction(s) or for a specified time period.
A guardianship is a legal relationship created when a person or institution named in a will or assigned by the court to take care of minor children or incompetent adults. To establish a guardianship, a petition is typically filed in state court where the ward lives. This petition usually names the potential guardian and provides information about the parties' relationship (if any) and usually any pertinent information about the heirs or estate of the ward. In the case of an adult ward, if mental incapacity is the reason for the petition, medical documentation should accompany the filing. Notice of the time and place of the hearing is given to the potential ward and other persons specified by statute. The documents are served on the interested parties at which point the proposed ward or his or her relatives can object to the guardianship request. A hearing is held. If the court finds sufficient evidence to order the guardianship, it may issue subsequent orders, which govern the relationship and the guardian's actions. The court may appoint a guardian if it finds the person is incapacitated and the appointment is necessary to provide continuing care and supervision of the person. Incapacity can result from any number of conditions, including, but not limited to mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of alcohol or other drugs. Essentially, the court must be convinced that the individual lacks sufficient understanding or capacity to make or communicate responsible decisions. A guardian must submit written reports to the court according to the court's orders and the law of the jurisdiction in which the guardianship takes place. If a guardianship is contested, the court may appoint a disinterested third party to investigate and make recommendations. Usually called a guardian ad litem, this person evaluates both the necessity for a guardianship, and the appropriateness of the proposed guardian. The ward may also hire separate legal counsel. If the proposed ward is indigent, the court sometimes appoints counsel.
Please see the following OH statutes:
3109.52 Power of attorney for residential grandparent.
The parent, guardian, or custodian of a child may create a power of attorney that grants to a grandparent of the child with whom the child is residing any of the parent’s, guardian’s, or custodian’s rights and responsibilities regarding the care, physical custody, and control of the child, including the ability to enroll the child in school, to obtain from the school district educational and behavioral information about the child, to consent to all school-related matters regarding the child, and to consent to medical, psychological, or dental treatment for the child. The power of attorney may not grant authority to consent to the marriage or adoption of the child. The power of attorney does not affect the rights of the parent, guardian, or custodian of the child in any future proceeding concerning custody of the child or the allocation of parental rights and responsibilities for the care of the child and does not grant legal custody to the attorney in fact.
3109.55 Notice of creation of power of attorney.
(A) A person who creates a power of attorney under section 3109.52 of the Revised Code shall send notice of the creation to the parent of the child who is not the residential parent and legal custodian of the child unless one of the following is the case:
(1) The parent is prohibited from receiving a notice of relocation in accordance with section 3109.051 of the Revised Code.
(2) The parent’s parental rights have been terminated by order of a juvenile court pursuant to Chapter 2151. of the Revised Code.
(3) The parent cannot be located with reasonable efforts.
(4) The power of attorney is being created by both parents.
(B) The notice shall be sent by certified mail not later than five days after the power of attorney is created. The notice shall state the name and address of the person designated as the attorney in fact.
3109.56 Requirements for creating power of attorney.
When a parent seeks to create a power of attorney pursuant to section 3109.52 of the Revised Code, all of the following apply:
(A) The power of attorney shall be executed by both parents if any of the following apply:
(1) The parents are married to each other and are living as husband and wife.
(2) The child is the subject of a shared parenting order issued pursuant to section 3109.04 of the Revised Code.
(3) The child is the subject of a custody order issued pursuant to section 3109.04 of the Revised Code unless one of the following is the case:
(a) The parent who is not the residential parent and legal custodian is prohibited from receiving a notice of relocation in accordance with section 3109.051 of the Revised Code.
(b) The parental rights of the parent who is not the residential parent and legal custodian have been terminated by order of a juvenile court pursuant to Chapter 2151. of the Revised Code.
(c) The parent who is not the residential parent and legal custodian cannot be located with reasonable efforts.
(B) In all other cases, the power of attorney may be executed only by one of the following persons:
(1) The parent who is the residential parent and legal custodian of the child, as determined by court order or as provided in section 3109.042 of the Revised Code;
(2) The parent with whom the child is residing the majority of the school year in cases in which no court has issued an order designating a parent as the residential parent and legal custodian of the child or section 3109.042 of the Revised Code is not applicable.
3109.57 Further requirements for creating power of attorney.
(A) Except as provided in division (B) of this section and subject to sections 3109.56 and 3109.58 of the Revised Code, a parent, guardian, or custodian may create a power of attorney under section 3109.52 of the Revised Code only under the following circumstances:
(1) The parent, guardian, or custodian of the child is any of the following:
(a) Seriously ill, incarcerated, or about to be incarcerated;
(b) Temporarily unable to provide financial support or parental guidance to the child;
(c) Temporarily unable to provide adequate care and supervision of the child because of the parent’s, guardian’s, or custodian’s physical or mental condition;
(d) Homeless or without a residence because the current residence is destroyed or otherwise uninhabitable;
(e) In or about to enter a residential treatment program for substance abuse.
(2) The parent, guardian, or custodian of the child has a well-founded belief that the power of attorney is in the child’s best interest.
(B) In addition to the circumstances described in division (A) of this section and subject to sections 3109.56 and 3109.58 of the Revised Code, a parent may execute a power of attorney if the other parent of the child is deceased.
3109.57 Further requirements for creating power of attorney.
(A) Except as provided in division (B) of this section and subject to sections 3109.56 and 3109.58 of the Revised Code, a parent, guardian, or custodian may create a power of attorney under section 3109.52 of the Revised Code only under the following circumstances:
(1) The parent, guardian, or custodian of the child is any of the following:
(a) Seriously ill, incarcerated, or about to be incarcerated;
(b) Temporarily unable to provide financial support or parental guidance to the child;
(c) Temporarily unable to provide adequate care and supervision of the child because of the parent’s, guardian’s, or custodian’s physical or mental condition;
(d) Homeless or without a residence because the current residence is destroyed or otherwise uninhabitable;
(e) In or about to enter a residential treatment program for substance abuse.
(2) The parent, guardian, or custodian of the child has a well-founded belief that the power of attorney is in the child’s best interest.
(B) In addition to the circumstances described in division (A) of this section and subject to sections 3109.56 and 3109.58 of the Revised Code, a parent may execute a power of attorney if the other parent of the child is deceased.
3109.58 Pending proceedings may preclude creation of power of attorney.
(A) As used in this section, “temporary custody,” “permanent custody,” and “planned permanent living arrangement” have the same meanings as in section 2151.011 of the Revised Code.
(B) A power of attorney created pursuant to section 3109.52 of the Revised Code may not be executed with respect to a child while any of the following proceedings are pending regarding the child:
(1) A proceeding for the appointment of a guardian for, or the adoption of, the child;
(2) A juvenile proceeding in which one of the following applies:
(a) The temporary, permanent, or legal custody of the child or the placement of the child in a planned permanent living arrangement has been requested.
(b) The child is the subject of an ex parte emergency custody order issued under division (D) of section 2151.31 of the Revised Code, and no hearing has yet been held regarding the child under division (A) of section 2151.314 of the Revised Code.
(c) The child is the subject of a temporary custody order issued under section 2151.33 of the Revised Code.
(3) A proceeding for divorce, dissolution, legal separation, annulment, or allocation of parental rights and responsibilities regarding the child.