Raising a child is challenging. Parents must devote significant time and attention to caring for their children. A job loss, serving time in jail, an injury, or an addiction can impact a parent’s ability to care for their child. Grandparents or other well-intentioned family members or friends might offer to help care for a child. However, they’ll probably ask to have some legal authority to make school or medical decisions. They may ask for formal custody or to share custody with you while they care for a child.
Parents, think twice before you agree to joint legal custody and/or physical custody of your child with anyone who is not the other biological parent. Virginia has a very strong legal presumption that favors the rights of parents. Even the U.S. Supreme Court has recognized the legal superiority of a fit parent to make decisions about what is best for their child over anyone else. Anyone trying to get custody or visitation of your child through the courts has a very high burden of proof to meet before a judge will take away or reduce your rights as a parent.
However, if you agree to give someone else custody of your child, you no longer will have that legal superiority. Once you lose the benefit of the presumption in your favor to make decisions about what is best for your child, it becomes easier for a court to award custody to someone other than you. By agreeing to sign over custody of your child to a family member or a friend, you give up that presumption forever.
In Virginia, there are other ways you can legally give third parties permission to make decisions about your child as well as to obtain information about your child. When you can’t take care of your child, you can have a written KINSHIP CARE AGREEMENT with a family member which would allow them to enroll your child in school, as well as to make decisions and care for your child on your behalf. Kinship care cannot be for the sole purpose of enrolling your child in a particular school: you have to be unable to care for your child for some reason, such as being in jail or suffering from a debilitating injury or illness. The school system typically requires the kinship care agreement to be notarized. The local social service agency may also come to independently verify the arrangement. If you choose to have a kinship care agreement, it is best to include a very specific and limited power of attorney. The power of attorney can legally authorize the person providing care for your child to have access to all of their educational and medical records, and to make decisions concerning your child’s education and health. You do not give up any of your custody rights when you sign a kinship care agreement and you can change or revoke it at any time without going to court.
Whether or not you have a custody court order, you can enter into a kinship care agreement with a third party or family member.
Parents, protect your rights to make decisions concerning your child. Do not agree to a joint legal or physical custody arrangement with anyone other than the biological parent without first consulting with an attorney. Instead, consider whether or not a KINSHIP CARE AGREEMENT will provide for your child’s needs while you protect your parental rights.
By: Sandy Bowen, Esq., partner, Bowen Ten Long & Bal, PC.