Who Should Get the Kids? : Grandparents vs. Parents in Court

Mom is on drugs. Dad is in jail. The grandparents have the kids. But, unlike in the past, they don’t simply step in and raise them as their own.

Today, many grandparents are dealing not only with diapers, tantrums and budgets stretched to the limit, but with drug-addicted infants and with toddlers who’ve been physically or emotionally abused, or used as pawns in divorce battles.

These grandparents sometimes find themselves caught in a legal and bureaucratic maze--and, frequently, in devastating and costly custody fights that can split their families apart.

“I have seen grandparents who have lost their homes, their cars, their jobs, $30,000 to $40,000” in legal disputes with their children, says Sydney Fryberger, founder of OWLS--Oldies With Little Ones, a Buckley, Wash.-based support and advocacy group.

The emotional cost can be high as well: Going into court to testify that your own child is an unfit parent can be wrenching. And, occasionally, grandparents face counter-charges from parents that--for reasons ranging from power trips to revenge--they will stop at nothing to get permanent custody.

Seeking custody can be a tough decision.

Most grandparents say they would rather have their grandchildren stay with Mommy and Daddy--but not if they feel the children are in danger.

Most state agencies make every effort to keep parents and children together. California and federal laws mandate that for 18 months after a child enters the social-service system, reunification is the goal. “The one exception is where there is some kind of heinous abuse,” says Peter Digre, director of Los Angeles County Department of Children’s Services.

So, for months or years, grandparents may find themselves in legal limbo.

They may be temporary custodians--called on in each new crisis--or they may be fighting for custody, usually guardianship.

“Very few grandparents want to adopt,” says Digre. “You have to go to court and terminate parental rights on your daughter. That’s pretty heavy duty.”

At 49, Fryberger is bringing up Chelise, 3, born drug-addicted to parents who are drug abusers. Fryberger says her son, Scott, and his ex-wife relinquished custody after he saw her physically mistreat their daughter.

Fryberger’s group, OWLS, is one of a burgeoning number of organizations nationwide addressing the needs and concerns of caretaker grandparents.

Fryberger and other activists claim that in social workers’ zeal to push reunification, the children are placed at risk. “The attitude is that these grandparents are just trying to take over these children and mess up a family. Give me a break. How many 50-year-olds do you know who want to take on a child, especially a drug-affected baby?”

Other grandparents echo her sentiments. They speak of a social-services system that turns a deaf ear to them in its attempts to keep children with their parents. They refer to themselves as second-class citizens in the eyes of the courts. They feel that they have no official support system.

Digre disputes that the system discriminates against grandparents. “If anything,” he says, “they’re discriminated for “ in that state law and agency policy are both “very, very explicit” that, if the parents are incapable, preference is given to qualified relatives.

Grandparents may see discrimination, he adds, because they do not yet have the well-developed support networks available to licensed foster parents. These networks, he says, make foster parents “feel more confident in terms of their ability to raise questions.” Also, he points out that foster parents tend to have longterm involvement with his agency, while grandparents may take care of one or two children.

Digre says he hopes that grandparents will join foster care providers “and talk to us about their needs and problems.”

“A lot of grandparents have had to intervene simply because the natural parents did not want to be tied down to raising their own kids,” says Barbara Kirkland, founder of Grandparents Raising Grandchildren, based in Colleyville, Tex.

The organization wants federal legislation that would assure that qualified grandparents be given custody of grandchildren whenever the parents are unable or unwilling to care properly for them.

Kirkland and her husband, Gerald, are raising their 11-year-old granddaughter, Trisha, whose father was killed. The mother, their daughter-in-law, did not contest custody.

“If the natural parents fight you, you can’t win,” Kirkland says, “unless you can convince the judge that they were unfit parents. The parents are willing to let you take care of their kids as long as you do what they want you to do, like come across with rent money. They say, ‘You can raise them, but we will not give you custody.’

“Legally, you cannot even enroll a grandchild in the school system if the natural parent doesn’t live in that district.” Unless grandparents have guardianship, a doctor cannot legally treat a child without written permission, she adds, “unless it’s a life-threatening situation.”

Grandparents of the ‘90s are coping, too, with an overextended, understaffed social services system. In Los Angeles County, says Digre, “we have hit the point where we have just about exactly as many kids in care of relatives as we do in the care of foster homes and group homes. And the majority of those situations are grandparents.” This adds up to 16,000 children.

Statistics do not tell the full story but, according to the U.S. Census Bureau, in 1990 there were 3.2 million children--5% of all youngsters under 18--living with grandparents.

The numbers increased steadily during the ‘80s, Digre says, taking off “like a rocket” in 1987 “when the crack cocaine epidemic started ripping through the community and debilitating so many addicts of child-rearing age.”

Each year in the county, about 4,000 babies are born drug-addicted. “In the vast majority of these cases,” Digre says, “there’s a grandmother or an aunt who doesn’t want this child going into the foster care system . . . this has been (our) growth industry.”

Homicide, drugs, incarceration and family violence introduce a new equation into the complex issue of caretaker grandparents.

The area most heavily affected has been South-Central Los Angeles. There, county social worker Lois Walters conducts grandparent classes in her role as president of the National Assn. of African-American Grandmothers, a group that is now multiracial and includes grandmothers in their 20s.

“Grandparents do have rights . . . but the have to know how to go about it. You have to use certain language, certain jargon; otherwise, you can’t enter into the (social services) system,” says Walters.

One of Walters’ graduates is Freddie Mae Smith, 66, who recently retired from her job with the city Board of Education. She and her husband, James, 69, have been granted temporary custody of four children. “Two greats and two grands,” says Freddie Mae.

Her faith and her sense of humor have enabled her to deal with a drug-addicted daughter, a drug-addicted granddaughter and another daughter who was paralyzed in a shooting.

She and James take care of two girls and two boys. Freddie Mae swung into action when a social worker told her that Kevin, 11 months old, and his brother, Kenneth, 12, were to be taken from their mother and placed in foster care. “I said, ‘You can’t do that!’ ” A judge was on her side.

To her, Kevin is a “miracle baby,” whose birth moved her daughter, Hettie, 40, to get into a cocaine treatment program.

Hettie had also been caring for her own two grandchildren whose mother, Shauna, was abusing drugs. Shauna recently went through a rehab program and is dealing with the breakup of her marriage. The Smiths hope that all four children will be reunited with their mothers but, if necessary, she and James will raise them.

Pulling a child from the parents’ home is traumatic for everyone.

In the case of Chelise, 3, Sydney Fryberger explains, the girl’s parents have visitation rights, but rarely visit. “I always called myself ‘Grandma,”’ she says, “but Chelise started calling me Mom. I’m the only mom she’s ever known. She calls my husband Dad, too. When she sees Scott (her father), she calls him Daddy Scott.”

In Juvenile Dependency Court in Los Angeles County, the bottom line in custody fights is always “the best interests of the child,” says county counsel Anna Mason. “The court gives great deference to grandparents, particularly if they had been caring for the child.”

If the mother has agreed to give the grandparents guardianship, but the father is missing, what are his rights?

“It depends on where he has been,” says county counsel Andrew Owens.

For all these children, the priorities are, in order, adoption, guardianship and long-term foster care. In most cases, Owens says, “there are no easy answers.”

A grandparent will be given first consideration in adoption, but placement will be based more on the child’s relationship with the primary caretaker. Even if the grandparents do not wish to adopt, Mason says, the court is likely to leave the child with them.

Mason says a child may be torn between two sets of grandparents battling for custody, but this is not common, because many cases involve an absent parent.

Digre says: “I’ve seen an awful lot of cases where the grandmother is really raising two generations. She’s struggling very, very hard to help her daughter overcome her addiction and get employment and get an apartment and, at the same time, to raise the kids. I’ve really seen them as heroic people, struggling against huge odds.”

Sylvie de Toledo, who founded GAP (Grandparents As Parents) in 1987, leads group therapy sessions in Long Beach and in West Los Angeles.

Grandparents rarely are licensed foster parents and are not compensated as such. About 75% do get Aid to Families With Dependent Children in California.

Sometimes, de Toledo says, the grandchildren are “just dumped at the grandparents’ home.” Drugs is the No. 1 issue in the families with which she has dealt but, she added, “What I’ve seen rising, unfortunately, is spousal murders.”

Because of their children’s problems, grandparents sometimes think of themselves as poor parents.

Grandparents as parents is “a horrible, horrible story,” says Lucile Sumpter, who with her husband heads a national information clearinghouse in Haslett, Mich. Her work started in the ‘70s for grandparents seeking visitation rights. Today, she realizes “we should have gone for children’s rights.”

Although all 50 states have laws to deal with custody issues in parental death or divorce, only 19 have laws for cases involving the intact, but dysfunctional family. “The attorneys and the judges do not understand that parents do abuse their children,” Sumpter says. “They think that’s a sacred institution.”

Where there is no court-ordered custody arrangement, Sydney Fryberger adds, “emotional blackmail” is commonplace. “Grandma is raising the grandchild, but Mom collects welfare and Grandma gets nothing.” If the grandmother reports the mother, the mother may threaten to run away with the child, she says.

Grandparents walk a fine line, aware always that they are not Mom and Dad. Frequently, children caught in the middle become conflicted and embittered.

Barbara Kirkland recalls granddaughter Trisha telling her mother: “One of these days (my mother) is going to be old and she’s going to need help with her mortgage and I’m not going to help her.”

Still, Kirkland says, whatever parents may have done, emotional and physical bonds are hard to break. “That’s their mother and their daddy.”