Grandparent Caretaker Legislation (House Bill 130)

Introduction

In April 2004, Gov. Bob Taft signed into law House Bill (HB) 130, the grandparent caretaker bill. The bill was sponsored by Rep. Linda Reidelbach (R-Columbus) and becomes effective on July 20, 2004. This Communiqué is to inform you about the provisions of the new law and the changes that will occur once the law is effective.

Background

In 1997, HB 215 created a task force to study the issue of grandparents raising their grandchildren. A major recommendation of the task force was to create a law for a notarized affidavit that recognizes the grandparent as the child’s full-time caregiver with the right to enroll the child in school and authorize medical care. In every General Assembly since that time, a bill has been introduced to implement the task force’s recommendations. HB 130 will implement some of the task force’s recommendations.

General information

HB 130 makes a number of changes to the current law regarding child custody, school enrollment and school tuition with regard to a grandparent’s rights.

The legislation creates two legal documents: a power of attorney and a caretaker authorization affidavit. Both documents allow a grandparent with a grandchild living with them to enroll the grandchild in school and make other educational decisions for the child. Both documents must be notarized and filed with the juvenile court or court of appropriate jurisdiction within five days of their execution. The legislation prescribes a form that must be used for both documents and delineates the specific circumstances under which each document can be created.

Under Ohio Revised Code Section (RC) 3109.52, the power of attorney is created by a parent, guardian or custodian and “grants to the grandparent of the child with whom the child is residing any of the parent’s, guardian’s or custodian’s rights or 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.” A power of attorney does not convey legal custody of the grandchild to the grandparent and does not affect the rights of a parent, guardian or custodian in any future proceedings.

Under RC 3109.65, a caretaker authorization affidavit may be executed by a grandparent who has made “reasonable attempts to locate and contact both of the child’s parents or the child’s guardian or custodian, but has been unable to do so.” The caretaker authorization affidavit gives the grandparent the “authority to exercise care, physical custody and control of the child, including the authority to enroll the child in school, to discuss with the school district the child’s educational progress, to consent to all school-related matters regarding the child, and to consent to medical, psychological or dental treatment for the child.”

Neither document may be used to enroll a child in a school district so that the child may participate in academic or interscholastic athletic activities. If either document is executed for these purposes, the document is void from the date of execution. Persons who execute either document for such a purpose can be prosecuted for the criminal offense of falsification of a legal document.

When can a power of attorney be executed?

A power of attorney may be executed only if one of the following circumstances exists:

• the parent is seriously ill, incarcerated or about to be incarcerated, is temporarily unable to provide financial support or parental guidance, is temporarily unable due to a physical or mental condition to provide adequate care and supervision of the child, is homeless or without a residence because the current residence has been destroyed or is otherwise uninhabitable, or is in or about to enter into a residential program for substance abuse, or
• the child’s other parent is deceased and the parent has the authority to execute the power of attorney, or
• the parent has a well-founded belief that the power of attorney is in the best interest of the child.

The power of attorney is created by using a form provided in RC 3109.53 and must be signed by the parent(s), guardian(s) or custodian(s) and by the grandparent and signatures must be notarized. The parent(s), guardian(s) or custodian(s) must file the power of attorney within five days with the juvenile court in the county where the grandparent resides or in any other court having jurisdiction over the child.

When can a caretaker authorization affidavit be executed?

A caretaker authorization affidavit may be executed by a grandparent if the child is living with the grandparent and the grandparent has made “reasonable attempts” to locate and contact both of the child’s parents or the child’s guardian or custodian, but has been unable to do so. The caretaker authorization is created by the grandparent by using a form provided in RC 3109.66 and must be signed by the grandparent, notarized, and filed by the grandparent within five days in the juvenile court in the county where the grandparent resides or in any other court having jurisdiction over the child.

What must a school district do under this new legislation?

First, a school district should update its admissions policies to reflect the new law. Second, school officials should ask if either of these documents applies when a child is being enrolled in the district. Under RC 3313.672, a copy of the power of attorney or caretaker authorization affidavit must be produced in order for a child to be enrolled under it in a school district.

Can our school district charge tuition for a child admitted under a grandparent power of attorney or caretaker authorization affidavit?

No. A school district must admit a child subject to one of these documents into the district free of tuition. The bill does not require a school district to accept a student if he or she can be excluded for other reasons, such as being suspended or expelled from a previous school district.

May a district require proof that the grandparent lives in the school district?

Yes. The prescribed forms found in the law clearly state that a school district may require additional evidence that the grandparent resides at the claimed address.

How do the documents terminate?

Both the power of attorney and caretaker authorization affidavit terminate after any of the following events:

• the passage of one year,
• the child ceases to reside with the grandparent,
• the document is terminated by court order, or
• the grandchild or grandparent dies.

A power of attorney also terminates if the person who created it revokes it in writing. A caretaker authorization affidavit is terminated if the parent, custodian or guardian of the child acts to negate, reverse or otherwise disapprove an action or decision of the grandparent by delivering written notice of the negation, reversal, or disapproval to the grandparent and to the person acting on the grandparent’s action or decision in reliance on the affidavit.

Whenever one of these terminating events occurs (excluding the death of the grandparent), it is the responsibility of the grandparent to inform all relevant parties, in writing, including the school district, within one week of the terminating event.

What happens if we rely on the validity of the documents?

Under RC 3109.61 and 3109.73, a person who relies on or takes action based on either document in good faith is “immune from criminal or civil liability for injury, death, or loss to persons or property that might otherwise be incurred or imposed solely as a result of the person’s reliance or action.” The law also shields a person from disciplinary action from any entity that licenses or certifies an individual.

Can there be more than one document executed for a child at one time?

No. RC 3109.80 specifically states that only one power of attorney or caretaker authorization affidavit may be in effect at a time.

Are there still questions about the application of this state statute to some federal laws?

Yes. Some uncertainty remains as to how this new law will be interpreted and whether it conflicts with various federal statutes. The new law also contains considerable details that are beyond the scope of this Communiqué.

The Ohio School Boards Association would like to thank Rep. Linda Reidelbach (R-Columbus), the sponsor of this legislation, for working with our organization to limit the scope of this legislation to grandparents and to remove some of the provisions potentially damaging to school districts.

The information in this Communiqué is intended as general information. It should not be relied upon as legal advice. If legal advice is required, the services of an attorney should be obtained.

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© Ohio School Boards Association, 2004