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Legal Relationship with the Child

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The RCG Program How to Legally Care for a Child

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Section 1: Family-planned or Arranged Care
Section 2: Power of Attorney for Care of a Minor Child
Section 3: Legal Custody
Section 4: Kinship Foster Care
Section 5: Permanent Guardianship
Section 6: Adoption

Acknowledgements Q. What are the legal options for relative caregivers?

Multiple Response A. Currently, there are six ways to legally care for the child you are related to. Scroll down on this
page to see the six sections, or click the links on the right to jump to a section.
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Cover Tennessee for Relative Caregivers
Find Legal Aid Office Section 1:
Family-planned or Arranged Care
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This is probably the most common kinship care arrangement. This type of care is also referred to as
physical placement, physical custody or informal care. This is when a parent asks you to take care of
the child or leaves the child with you to take care of full-time. The child lives with you, and you take
care of the child's daily needs. However, the parent does not sign any legal papers. The court is not
involved. The Department of Children's Services (DCS) is not involved. With this option, you don't
have legal custody. Although your decision-making power might never be challenged, your legal
authority to make major decisions for the child is very limited.

With family-planned care, either parent can take back the child whenever he or she wants. You may
have problems enrolling the child in school or daycare. You may be able to get simple medical care.
However, you can't make major medical decisions. Sometimes medical providers and schools will only
give information to a person who has written proof of having a legal relationship. Other times there is
an emergency and the child's parent can't be reached, or the parents are unable or unwilling to help.
In these situations, you may have to go to court to get legal custody or permanent guardianship of
the child, and this takes time. Additionally, you may be held responsible for anything that happens to
the child while in your care even if you don't have a legal relationship with the child. This is another
reason why it is important for you to have written documentation that outlines your responsibilities
and the parents' responsibilities.

You also may not be able to get child support. There are two ways you may be able to get child
support: (1) a parent willingly provides it, or (2) the state pursues child support if you get the
Department of Human Services (DHS) Child-only grant. Get more information about the DHS Child-
only grant. DHS may or may not give you the child support collected from the parents. You must ask
your DHS case manager. For more information about what financial help is available for family-
planned care, visit Money Issues.

You should know that without having written proof of a legal relationship, it is likely that you will have
problems getting services and information for the child in your care. This includes problems with
receiving medical, financial and educational services for the child.

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Section 2:
Power of Attorney (POA) for Care of a Minor Child
The Tennessee Legislature passed a law in April of 2003 called the Power of Attorney for Care of a
Minor Child Act, Tennessee Code Annotated §34-6-301, et.seq. The POA is a written legal agreement
between a parent and any competent adult. It legally strengthens family-planned or informal care. It
gives you the authority to care for and make decisions regarding the child. This law was created so
that adults, especially relative caregivers, would be able to care for children when the children's
parents were not able to do so because of a hardship. Hardships may include if the parent is sick, in
jail or mentally unable to care for a child.

The court is not involved. DCS is not involved. You don't have legal custody of the child. It is only
helpful if both sides agree that they want it, and if third parties (schools, doctors, insurance
companies, etc.) recognize it. With this agreement, it is more likely that doctors, schools, and other
may accept your authority to legally act for the child than without an agreement. You should be able
to enroll the child in daycare or school. You should be able to get medical, mental health, dental and
special education services for the child.

How do I get the POA?

To get the POA for a child, you don't need a lawyer. You don't need to go to court. You just
have to fill out the POA paper (in English or Spanish) and the parents or legal guardian must
sign the paper in front of a notary public. Most banks and law offices have a notary public. Both
parents are supposed to sign the POA. However, if one parent can't be found, the parent that is
present must write on the POA why the other parent did not sign the POA. Then the present
parent must send a copy of the POA law and the completed POA to the other parent. This must
be sent by certified mail, return receipt requested, to the last known address of the other
parent.

Can the POA be ended?

Yes. From the parents' point of view, a POA shows that they have not abandoned their child. It
does not take away any of their parental rights. They may cancel or end the POA at any time
by signing a Revocation of Power of Attorney for the Care of a Minor Child. It does not have to
be the form that we provide below. It just has to be in writing. Either parent with legal custody
can end the POA. Or if a judge gives legal custody or permanent guardianship to someone else,
this will end the POA. Also, parents have a right to visit their child. Although there is no
automatic end date for a POA, it was designed to be temporary. If you think that you will be
caring for the child for over a year, consider filing a petition for legal custody or permanent
guardianship. There is more information about legal custody and permanent guardianship
below.

For further information about the POA, read the Kinship Care POA Guide. Read POA in English or
Spanish. View the revocation of POA in English or Spanish.

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Section 3:
Legal Custody
In Tennessee, there are several words that describe legal custody?sole, temporary, permanent,
shared and joint. No matter which word you use, all of these descriptions of legal custody involve the
same rights and responsibilities. The level of authority a person has is the same for all these words.
Legal custody is discussed below as it relates to relative caregivers.

Legal Definitions:

Legal custody
refers to decision-making authority in regards to a child.

Sole legal custody

means that all of the legal custody and decision-making authority of the child
is given to one person.

Shared or joint legal custody

refers to situations in which more than one person has the legal custody and
decision-making authority of the child.

Temporary legal custody

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refers to the legal custody and decision-making authority of a child before a

final court hearing. However, if no additional court hearing ever happens,
temporary legal custody can last until a child is 18 years old. The Relative
Caregiver Program (RCP) defines temporary legal custody as ?a legal
relationship awarded by an appropriate court between the relative caregiver
and child(ren).?

1. What kind of decision-making authority will I have?

Having legal custody means you have the right and responsibility to physically care for the child
and to make decisions regarding the child's welfare. This includes the responsibility of properly
feeding, clothing, educating, housing, and caring for the child. It does not mean that the birth
parents' rights have been taken away forever. This is why it is different from adoption. For
more information on adoption, read below.

2. Who can have legal custody of a child, and why would I want it?
Any person with a close and significant relationship to the child may seek legal custody. Getting
legal custody is the best choice sometimes when you want clear legal authority to care for the
child, but don't necessarily want permanent responsibility for him or her, as with adoption.
Legal custody is also good if you want to have clear, enforceable rules about where the child is
going to live, visitation by the parents, and child support. The custody order usually states
under what circumstances the parents can see the child. The parents have the right to see the
child, but it may have to be supervised. Also, the judge may decide how often the parents can
visit, or the judge may leave that up to you. The parents are still financially responsible for the
child. This means that they may have to pay child support.

3. How can I get legal custody of the child?

You must file for legal custody in court. A judge in juvenile, chancery or circuit court gives you
a legal custody order. You may or may not need a lawyer. Call or visit the clerk's office at the
courthouse to get information about whether you can try to get legal custody yourself or if you
need a lawyer. If both parents agree with you having legal custody, and if the judge is satisfied
that you do have a safe and appropriate home and background, the judge will probably give
you legal custody. If one or both parents disagree with you having legal custody, you will have
to prove that the parent(s) is unfit, and that it is in the best interests of the child to be with
you. The judge will decide who gets legal custody.

Additionally, recent legislation has included caregivers in the list of factors a judge must
consider in a child custody arrangement following a divorce, annulment, or separation. Natural
parents will still receive constitutionally required preference; however, courts are now required
to consider caregivers when determining a custody agreement. Such factors include:

• The love, affection, and emotional ties existing between the caregivers and child
• The disposition of the caregivers to provide for the child and the degree to which the
caregiver has been the primary caregiver
• The stability and health of the caregiver
• Character of other people residing with the caregiver
• Parenting performance by caregiver and the caregiver's willingness to encourage a
relationship between the child and parents

Caregiver is any person or entity responsible for providing the supervision, protection, and
basic needs of the child.

4. Can the parents get legal custody of the child back?

Maybe. Legal custody orders can be changed sometimes. They are not permanent. If a parent's
situation changes, he or she can ask the court to return custody back to him or her. In order
for a judge to give back legal custody to a parent, the parent must prove to the judge that
there has been a ?significant change? in his or her life. This means that the parent has had a
really BIG change. The judge decides what a big change is. The fact that parents gave legal
custody to you voluntarily does not mean they will automatically get the child back if they ask.
They still have to show a big change. However, sometimes parents are more likely to agree
with relative caregivers having legal custody because it does not end their parental rights. The
parent must also show that returning custody to him or her is in the best interests of the child.

5. What if I have temporary custody of my grandchild?

Temporary custody is the same as sole legal custody. Temporary custody lasts until someone
challenges it in court. Therefore, if no one ever goes to court to try and get custody of the
child, legal custody remains with you. A parent can't come and take the child from your home if
you have custody, temporary or permanent. A judge must decide whether custody will be
returned to a parent. However, if this type of custody concerns you, there are more permanent
options available that are discussed below.

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6. When would I want to have shared or joint legal custody instead of sole legal custody?
Shared or joint custody may be an option for your family also. Joint custody is just another
name for shared custody. The main characteristic of this type of custody is that it is shared
between two people. If you have this type of legal custody, you still have the same legal
authority and responsibilities as sole legal custody. You and another person or people share the
authority and responsibilities. Many times, shared custody is good for families if a parent is
young and/or immature. Shared custody can allow the relative caregiver to have physical
custody of the child, but the parent can have legal custody too. This keeps them involved in the
child's life, but also gives them the chance to grow up before resuming daily caretaking
responsibilities. Also, the parent can't come and take the child without going back to court as
long as the court order says that you should have physical custody.

Shared custody can also put the grandparent in a better position if the situation arises that the
other parent, who does not have legal custody, decides he or she wants legal custody. For
example, two teens have a child and are not married. A teen father and his mother (the child's
grandmother) share custody. When the mother realizes that she has to pay child support, she
may decide that she wants legal custody instead. Generally, parents have greater rights to
make decisions concerning their children than other relatives have. Therefore, if the
grandmother had sole legal custody, the mother's rights may top hers. But because the
grandmother's son also has legal custody, that puts two parents with equal rights against each
other. Not a parent and a grandparent against each other.

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Section 4:
Kinship Foster Care
This is when DCS, the state, has legal custody of the child, but the child lives with you. When DCS has
custody, they make all major decisions for the child. This option is not available to everyone. It is only
available if DCS is involved with a child. If DCS removes a child from his or her home, they must
search for a relative placement first. One of the first jobs of DCS is to prevent the child from coming
into state custody. Therefore, they may try to give legal custody or permanent guardianship to you.
DCS policy requires that they give you a brochure and explain the legal and placement options
available to you. If you would like to keep the child, but are not financially able to do so, you should
make sure that DCS explains how you can do that if the child is in your legal custody or in DCS
custody.

If the child stays in DCS custody, and DCS and you decide that the child will live with you, you must
become a certified foster parent. In order to become an official foster parent, you must complete
about 27 hours of Parents as Tender Healers (PATH) training. You must also have a satisfactory
background check, home study, and physical by a health professional. You must also agree not to use
corporal punishment on the child. DCS describes corporal punishment as physical discipline or
spanking.

DCS will provide for the child's financial and medical needs, including dental and mental health needs.
DCS will also provide other support services for you and the child. You will provide for the child's daily
needs. Once you have been approved and have completed PATH training, you will get a foster care
board payment. You will usually get between $450 and $600 a month for every foster child in your
home. The exact amount depends on their age and if they have any special needs (i.e., disabled). If
you are not finished with the PATH training and DCS places the child in your home, you will have to
get the Families First Child-Only Grant. For more information, go to Question #2 in the Money Issues
section. Also, DCS can help you with material assistance (i.e. bed, dresser), clothing, and additional
financial needs for the child through something called flexible funding or DCS flex funds. Ask your
child's case manager about financial help.

Because DCS has legal custody of the child, they are responsible for making all major decisions about
the child, including medical and educational decisions. As long as the child is in the custody of DCS,
they will have ongoing involvement in your family's life. This includes monthly home visits to check on
the child. You will also have to regularly participate in DCS Child and Family Team meetings, Foster
Care Review Boards, and court hearings about the child's progress and situation. If DCS believes that
your home is not the best place for the child, they can take the child from your home. DCS will
probably let the parents visit the child, and try to get child support from the parents.

For more information about kinship foster care, contact Julie Flannery, Director, Foster Care Adoption
and Kinship Care, DCS at (615) 532-6351 or julie.flannery@state.tn.us.

If you want to become a DCS foster parent, contact Servella Terry, Director, Recruitment, Retention,
and Support, DCS at (615) 532-5616 or servella.terry@state.tn.us.

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Section 5:
Permanent Guardianship
Permanent guardianship is a new law that was created because there was little guidance on what
legal custody included and what it took for parents to get custody returned to them. Permanent
guardianship is also more permanent than legal custody. It is also harder to end. Getting permanent
guardianship is best when you are willing to have permanent caretaking responsibilities for the child,
but you don't want to terminate or end the parents' rights. You will have the same rights as the
parents if they had custody of the child. You will make all daily and major decisions about the child
until he or she is an adult.

(all taken from T.C.A. 37-1 Chapter 8):

1. Who can appoint a Permanent Guardian?

Juvenile judges in juvenile courts

2. When could I be appointed as a permanent guardian?

Any hearing where ?the permanent disposition of the child can be made? including at a
permanency hearing, child protection hearing, or a delinquency hearing. A child does not have
to be in the department's custody for a permanent guardian to be appointed.

3. What are the requirements to be a permanent guardian?

A permanent guardian can be any adult who has a significant relationship with the child as a
permanent guardian when the court finds:

• the child has been living with the proposed legal guardian for at least 6 months
• permanent guardian is within the child's best interest AND reunifying the child with the
parent is not in the child's best interest

The permanent guardian must have the following characteristics

◦ Is emotionally, mentally, physically and financially suitable to become the permanent guardian;
◦ Can provide a safe and permanent home for the child
◦ Is committed to being the permanent guardian while the child is a minor
◦ Understands the financial consequences of being a permanent guardian
◦ Will follow any court order to provide the child's parents with visitation, contact, or information

The court must also consider the following factors:

◦ child's need for continuity and for timely integration into a stable home
◦ the physical, mental, and emotional needs of the child
◦ quality of interaction with the child's parents, siblings, relatives, and caregivers
◦ child's preference
■ if the child is 12 or older, the court must consider this preference
■ if the child is under 12, the court may consider this preference

4. What do I do as a permanent guardian?

Basically, permanent guardians have the same every day interactions that natural parents have
with their children. Permanent guardians are required to:

◦ protect, nurture, discipline, and educate the child

◦ provide the child with food, clothing, shelter, education, and health care
◦ authorize release of information that would require consent of a parent by law
◦ consent to social, school activities, military enlistment, and marriage
◦ obtain legal representation for the child in legal actions
◦ decide who the child can socialize with and when and where the child can travel

5. Does being a permanent guardian terminate the parent's rights to the child?
No. Being a permanent guardianship does not affect:

◦ the child's inheritance rights from its parents

◦ parents' right to visit or contact the child (courts will define these limitations)
◦ parents' right to consent to the child's adoption
◦ parents' responsibility to provide financial, medical, and other support for the child

6. Can the parents get permanent guardianship of the child back?

Maybe. In order for a judge to give back full guardianship to a parent, the parent must prove to
the judge that there has been ?a substantial change of material circumstances? in his or her
life. This means that the parent has had a really BIG change. The judge decides what a big

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change is. The parent must also show that getting custody back is in the best interests of the
child. The court may also consider if the caregiver is unfit. If DCS has been involved in the
case, they will give an opinion about who should have guardianship. If the child is over 12, the
child's opinion is taken into account. For further information, see Permanent Guardianship.

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Section 6:
Adoption
Adoption gives a relative caregiver full legal and financial responsibility for parenting a child. When
you adopt your relative's child, you become their parent. You make all decisions about the child.
Adoption is sometimes a good idea if you think it is unlikely that the child's birth parents will ever be
able to properly care for the child. If you adopt the child, the relationship is permanent. However,
before you can adopt, both birth parents' rights have to be terminated or ended. Parents can
voluntarily surrender their parental rights or a judge can decide that their rights should be terminated
or ended. This doesn't mean that the child can never see his or her birth parents. Tennessee leaves
that decision totally up to you. However, it does mean that the child is no longer able to get their birth
parents' social security, inheritance or health benefits, but they can get yours. You are the child's legal
parent.

1. What are some possible negative issues regarding adoption?

Adoption may be a long process. It is also complicated and requires a lawyer. An investigation
has to be done in order to determine if the child is eligible for adoption and if your home is
suitable for the child. Adoption can also be expensive. Go to adopt my relative's child or adopt
my teenage relative. Although some challenges do exist with adoption, if you are a relative of
the child you are adopting, you can usually have the home study and 6 months waiting period
waived.

2. What are more positive reasons for adopting the child?

Adoption may also be a good choice if grandparents are worried about what will happen to
their grandchild if they die or are no longer able to care for the child. If you are caring for a
child informally, you have no legal say about what happens to the child. The child's parents are
legally responsible. If you have legal custody or guardianship, the court decides who should get
custody. Adoption is the only option that you would have the legal right to plan living
arrangements for the child. Your adoptive child may also get your benefits if you get social
security, health insurance or veteran's benefits.

For more information on legal and placement options:

• Read Placement Practices and DCS Disclosure of Legal Options.

• Read the DCS Brochure (in English or Spanish).
• Read the Vanderbilt Brochure (in English or Spanish).

3. I would like to adopt my relative's child, but our family is afraid that they will no longer
be able to have contact with the child.
Tennessee's current law leaves visitation decisions completely to the adoptive parents. You and
the birth parents could make an agreement about visitation. However, any agreement that you
and the parents make about visitation are NOT legally binding in Tennessee. This means that if
you or the birth parents decide to stop visitation, the court can't make anyone follow the
visitation or contact agreement you all made.

Other States' Laws:

Several other states have laws that allow open Adoption or adoption with contact agreements.
These laws empower birth and adoptive parents so that they can make agreements about the
birth parents' contact and communication with the child. Open adoption may be a way for
parents to voluntarily give up their parental rights and make relatives more comfortable with
adoption. For more information, read Open Adoption.

4. The DCS case manager keeps pressuring me to adopt. He/she says that DCS will
remove the children from my home if I don't adopt them.
The main goal of the Department of Children's Services (DCS) is for a child to be in a safe,
permanent living situation. DCS prefers that children don't stay in their custody for long periods
of time. Therefore, in order for it to be an option for the child to stay in your home
permanently while he or she is in DCS custody, the DCS Commissioner has to approve it. If you
think it is best for the child to live with you, but you are not able to adopt or take custody of
the child, you should try to tell the DCS case manager your reasons.

If this does not work, you do the following:

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• 1st Contact the Team Leader.

• 2nd Contact the Team Coordinator.
• 3rd Ask for a Child and Family Team Meeting.
• 4th Consult a lawyer or call your area law school clinic to see if someone can help you
influence DCS that living with you while in DCS custody is best for the child.

Visit Department Children's Services for a listing of DCS office numbers. In the end, however,
the DCS Commissioner has to decide if the child can stay with you until he or she is 18 or if the
child will continue to be in DCS custody. DCS calls this goal Planned Permanent Living
Arrangement (PPLA).

5. I need help getting disability for my relative's child.

• Visit Disability Section on TennHelp.com and Legal Section on TennHelp.com, or visit

Tennessee Pathfinder.
• Check your area law school clinics.
• Check with your local Legal Aid/ Services. For the Legal Services office in your area, call
Tennessee Alliance for Legal Services (TALS) at 1-888-395-9297.
• Call your local Pro Bono Program. To find your local Pro Bono Program, call the
Tennessee Bar Association (TBA) at (615) 383-7421 or TALS at 1-888-395-9297.
• If you are a member of AARP, you should be able to get 20% of certain lawyers' regular
rate through the AARP Legal Services Network. This is not the same as Legal aid. For
more information, visit AARP.

6. What will happen to my grandchild when I'm deceased?

If you are caring for a child informally, you have no legal say about where your grandchild will
live once you die. The child's parents are legally responsible. If you have legal custody or
guardianship, the court decides who should get custody of the child when you die. Adoption is
the only option that you would have the legal right to plan living arrangements for the child
when you die.

7. I need help with a custody issue regarding my relative's child.

• Check your local juvenile court because you don't need a lawyer for some issues.
• Visit Legal Section on TennHelp.com.
• Check your area law school clinics.
• Check with the local legal aid office in your area. For the legal services office in your
area, call Tennessee Alliance for Legal Services (TALS) at 1-888-395-9297.
• Call your local Pro Bono Program. To find your local Pro Bono Program, call the
Tennessee Bar Association (TBA) at (615) 383-7421 or TALS at 1-888-395-9297.

Limitation:
There is a severe lack of lawyers who accept relative caregiver custody pro bono cases. For
more information about legal help, read Programs Providing Legal Assistance.

8. I am having a hard time registering my relative's child up for school. The school is
refusing to take the Power of Attorney (POA) form I have provided.

• Show the school proof of the hardship that is causing the child to live with you. For
example, if the child's parent is terminally ill, maybe you can give the school a letter
from the parent's doctor.
• Call your Relative Caregiver Program (RCP) family advocate or case manager. The RCP
case manager may be able to call or visit the school and explain the situation.
• Schools should be educated about the POA law. Maybe the school is not aware of the
new law or how it works. Ask the school to visit the legal options section of this website
and read about the POA, or ask them to read the Kinship Care Medical and Educational
Decisions for Caregivers Guide.
• Call the Department of Education and explain your situation. Ask their advice of what to
do.

9. I need help creating a will.

• Visit Legal Section on TennHelp.com.

• Check your local law school clinics.
• Check with the local legal aid office in your area. For the Legal Services office in your
area, call Tennessee Alliance for Legal Services (TALS) at 1-888-395-9297.
• Call your local Pro Bono Program. To find your local Pro Bono Program, call the
Tennessee Bar Association (TBA) at (615) 383-7421 or TALS at 1-888-395-9297.

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• If you are a member of AARP, you should be able to get 20% of certain lawyers' regular
rate through the AARP Legal Services Network. This is not the same as Legal aid. For
more information, visit AARP Legal Services Network.
• Read Do I Need a Will Fact Sheet on the Legal Aid Society's website.

10. What if I am having a legal problem with age discrimination, government benefits,
healthcare, Social Security or SSI, housing, etc.

• Visit Disability Section on TennHelp.com and Legal Section on TennHelp.com.

• Check your local law school clinics.
• Check with your local Legal Aid/ Services. For the Legal Services office in your area, call
Tennessee Alliance for Legal Services (TALS) at 1-888-395-9297.
• Call your local Pro Bono Program. To find your local Pro Bono Program, call the
Tennessee Bar Association (TBA) at (615) 383-7421 or TALS at 1-888-395-9297.
• If you are a member of AARP, you should be able to get 20% of certain lawyers' regular
rate through the AARP Legal Services Network. This is not the same as legal aid. For
more information, visit AARP.

11. The child that I care for is about to turn 18 and unable to care for herself. What should
I do?

• You may need to get a conservatorship. A conservatorship can be set up after a judge
decides that a person (called the "conservatee") can't take care of themselves or their
finances. Then the judge chooses another person or organization (called the
"conservator") to be in charge of the conservatee's care, health and/or finances. For
more information about conservatorship, visit the TBA website.
• Visit Disability Section on TennHelp.com and Legal Section on TennHelp.com.
• Check your local law school clinics.
• Check with the local legal aid office in your area. For the Legal Services office in your
area, call Tennessee Alliance for Legal Services (TALS) at 1-888-395-9297.
• Call your local Pro Bono Program. To find your local Pro Bono Program, call the
Tennessee Bar Association (TBA) at (615) 383-7421 or TALS at 1-888-395-9297.
• If you are a member of AARP, you should be able to get 20% of certain lawyers' regular
rate through the AARP Legal Services Network. This is not the same as Legal aid. For
more information, visit AARP Legal Services Network.

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This online manual is a project of the Tennessee Alliance for Legal Services (TALS). The project was made possible by
the generous support of TALS and the Vanderbilt University Law School Externship Program. The Relative Caregiver
Resources Website and updates have been made possible by a grant from the Tennessee Administrative Office of the
Courts, Tennessee Court Improvement Program.

TALS does not recommend or endorse any of the groups, agencies and resources listed in this documentation. The
documentation herein is not intended to be and should not be used as a substitute for legal advice regarding your specific
situation. If legal advice is required, you should get a lawyer.

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1808 West End Avenue, Suite 1216 | Nashville, TN 37203 | 615.627.0956

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