INTRODUCTION
 

Relative caregivers often have trouble accessing educational enrollment and special education services for the children in their care.  The reason for these access issues is that the vast majority of these families are outside the formal foster care system and often lack a legal relationship, like guardianship or legal custody, to the children. Many relative caregivers raise children "informally" because, although they often sense that the arrangement is permanent, they hope that the parents will be able to raise the children at some point.

For these caregivers to establish a legal relationship with the children, they must bring a legal proceeding against the parents, one of whom is their relative. These proceedings are usually lengthy and emotionally difficult for everyone involved. The court must reach conclusions about the fitness of the parents and the “best interests” of the child. These conclusions – and the entire process -- can strain family relationships, rather than keep the family together. See the care and custody analysis on this website for more information about legal relationships.

Residency Requirements 

Many states do not require a caregiver to have legal custody or guardianship to enroll a child in school, but do have residency requirements that require children to be in the school district for a “legitimate” purpose, i.e., not solely to attend school. Some local school districts in turn require caregivers to show documentation of legal custody or guardianship to enroll the children.

The districts require this proof to prevent families from abusing the school system by shopping for a particular school, and having their children live in that district during the school week or school year solely to attend that school. However, the problem with requiring proof of legal custody or guardianship is that, in addition to preventing abuses, it unjustly prevents children who are being raised informally by relative caregivers from attending school, and receiving any needed special education services.

State Responses

Some states have developed ways to balance the concerns of school systems and families by enacting laws that allow these children to enroll in public school tuition free, and by adhering to federal requirements concerning special education services:

  • Educational consent laws generally allow a caregivers without legal custody or guardianship of the children to complete an affidavit under penalty of perjury that they are the primary caregivers of the children, which then allows them to enroll the children in public school.
  • Children have legal residency, rather than the parents, for purposes of enrolling in school.
  • Open enrollment laws that allow parents to enroll children in schools not in the districts where the parents live.
  • A unique law that allows children to be enrolled in the district of grandparents who provide after school care.
  • Power of attorney laws specific for this purpose that allow parents to complete a form or handwritten document, which states what type of authority they are giving the caregivers.
  • State laws that cite federal special education law that do not require grandparents and other relatives to become "surrogate parents" for purpose of accessing services. 

 

SUMMARY AND COMPARISON OF EXISTING STATE LAWS

Educational Consent Laws

Seventeen states have educational consent laws: California, Connecticut, Delaware, Hawaii, Kentucky, Louisiana, Maryland, Missouri, Montana, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, and Virginia.

Since 1994, California has had a consent law that allows an "informal" relative caregiver to submit the same affidvait to enroll the child in school and consent to the child's medical treatment.  An important aspect of this law is that the signatures of the child's parents are not required on the affidavit, which is crucial in those instances where the parents cannot be found.  The law includes the form for the affidavit with a note to school officals that addresses the concern that some individuals could abuse this law to shop for schools. [1]

 

Children Have Legal Residency

Other states have found additional innovative ways to ensure that children being raised by grandparents and other relatives can attend public school tuition free. In a few states – Michigan, Rhode Island, and South Dakota -- children’s residency basically follows them, rather than their parents. In other words, where a child lives is his or her legal residency for purposes of attending public school. Rhode Island's law is a very straightforward example of these laws:

…[I]n cases where a child has no living parents, has been abandoned by his or her parents, or when parents are unable to care for their child on account of parental illness or family break-up, the child shall be deemed to be a resident of the city or town where the child lives with his or her legal guardian, natural guardian, or other person acting in loco parentis[in place of a parent] to the child.[2]
 

A similar approach to access school enrollment is used in Indiana. That state has had a law for several years that the “legal settlement” of a student being supported, cared for and living with another person, is the school attendance area of that person.[3] In Indiana, local school districts cannot require guardianship or legal custody unless facts are in dispute and the school district believes that (1) the child is living with another person primarily in order to attend a particular school, and (2) the students’ parents are able to support the student. If the facts are disputed and the school therefore requires guardianship or legal custody, the child may be enrolled on the day that papers are filed with the court to obtain guardianship or legal custody.

 

Open Enrollment Laws

Some states allow children being raised by relatives to enroll in public school tuition free through open enrollment laws. These laws generally allow a parent or guardian to enroll his or her child in a public school not located in the district where the parent lives. If the parent is still involved in the child’s life, this may be a way to enroll a child near the home of the relative who is raising him or her.

 

Grandparents Provide After-School Care

Texas has an innovative provision in its law, which does not appear to exist in any other state. A child may attend a school district in which he or she does not reside, but in which the grandparent resides “and provides a substantial amount of after-school care for the person as determined by the board.”[4]

Power of Attorney Laws

The majority of states and the District of Columbia have explicitly codified power of attorney laws so parents can bestow relatives with the power of attorney for the care of their children: Alabama, Alaska, Arizona, Arkansas, Colorado, District of Columbia, Georgia, Hawaii, Idaho, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Tennessee, Utah, and Washington.

 

These states typically allow the power of attorney to be designated for six months to a year, so it may not be the best option for long term caregivers. The laws are generally written to confer all powers over the care of a child, with the notable exceptions of the powers to consent to marriage or adoption. Once the designation is complete, caregivers should be able to enroll a child tuition-free in public school.

 

In 2005, New York enacted a power of attorney law that legalized the common practice of parents writing notes to schools or medical providers stating that other people have temporary responsibility for their children.[5] This law is more explicit than some other laws and delineates what information parents must include in the document to designate a temporary caregiver, either related or not related, for their children. If the time period is not stated, it is assumed to be thirty days. Six months is the maximum time designation, but renewals are permissible. Once the designation is completed, temporary caregivers can:   

 

  • enroll a child in school,
  • sign necessary school consent forms, like those for class trips, and
  • consent to most medical care, including immunizations, routine medical care, dental work, mental health therapies, and emergency care.  

Caregivers, however, cannot consent to certain elective major medical procedures. Information on medical consent is available in the health care analysis on this website. 

 

It is important to note that educational consent documents and power of attorneys like the one in New York can be easily revoked by the parents. Furthermore, institutions, such as schools and hospitals, may not accept them despite the existence of a law stating they should.

Surrogate Parent

The federal Individuals with Disabilities Education Act (IDEA) funds three categories of services for all disabled children regardless of who is raising them:  

  • Early intervention services for children birth to three (Part C)
  • Pre-school services (Part B)
  • Special education services, for K-12

Services under all three categories can include speech, physical, and occupational therapies.

Schools should be including relative caregivers in the process of developing these services.  The U.S. Department of Education regulations implementing the IDEA define “parent” to include relative caregivers. The definition of “parent” is found in Title 34 of the Code of Federal Regulations (CFR) at section 300.30(a):

 

The term parent means -- … (4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare; or (5) A surrogate parent who has been appointed in accordance… 
 

Some jurisdictions reportedly require relative caregivers to go through a process to become a “surrogate parent” in order to be considered a “parent”. The plain language of the federal regulation does not require this step for these caregivers. Advocates should point to this federal regulation in cases where relatives are required to complete the process.

Arizona and Oklahoma specifically cite this regulation in their statutes concerning surrogate parents, thereby making it clear that grandparents and other relatives who are acting as parents are not required to become surrogate parents.[6] On the other hand, Illinois, Nebraska, and New Hampshire laws, appear to contradict the federal regulation and arguably require that relatives acting in the place of parents become surrogate parents.[7]
 

LEGISLATIVE TRENDS

Over the past roughly fifteen years, states have become more aware of the needs of grandparents and other relatives raising children due to many reasons, including advocates’ efforts, increased press interest, and an additional U.S. Census question collecting information on these families. As a result, states are designing laws for the millions of relatives raising children, most of whom are thought not to have a legal relationship with the children, such as guardianship or legal custody.

The educational/medical consent trend seems to have started in California in 1994; since that time, many more states have joined it. States like Indiana have found other ways to accommodate these families to ensure that children get the education they need. In practically every legislative session since the mid-1990s, legislation has been enacted to help grandfamilies with educational issues. There are still a number of states that have not addressed these issues and educational enrollment continues to be a difficult, if not impossible, hurdle for these families to overcome. 
 

PRACTICAL INFORMATION
Maryland has had an educational consent law since 2005, and its experience is a useful source of practical information for legislators and advocates interested in enacting consent laws in their states.

Maryland’s educational consent legislation was introduced in the state legislature in 2002, three years before becoming law. Its champions were Pat Owens, Co-Founder and President/CEO of Grandfamilies of America, and most major children’s and aging advocacy groups. Resistance came from the School Boards for Baltimore City and Baltimore County, because of fear of mass exodus from Baltimore City schools to the County. There were many questions about who would pay for these additional children if this exodus happened. The advocates overcame the opposition through many individual meetings with opponents to discuss concerns. Furthermore, the bill sponsor did a significant amount of work to nurture relationships with school boards.

In order to enact the related medical consent provisions, advocates decided that the best course of action was to split the bills. They knew this could delay passage of the educational consent bill, but wanted to ensure that medical consent became law.

Eventually the educational consent bill also passed due to tireless advocacy. In Pat Owen’s words, “we just wore the Judiciary down in both the Senate and House.” The advocates shared the countless personal stories of children being kept out of school for weeks and even months. To compound that problem, the school board was threatening caregivers with penalties for keeping children out of school. It became very embarrassing for school officials and the law eventually passed and was signed by the governor.

In the years since becoming law, the effectiveness of its implementation has varied. The bill included a few specifics concerning how grandfamilies would enroll children, but not many. As a result, the law has been interpreted very differently depending on the jurisdiction. Some counties are doing a very good job, while others are not.

The implementation process brought up the need for certain amendments to the original law.  Mostly recently, in March 2012, new amendments (SB 178) were enacted due to concerns that some documentation requirements were too onerous for many grandfamilies.

The amendments repeal the requirement that the affidavit verifying informal kinship care be supported by documentation of serious family hardships and, where possible, contact information of any authority who can verify assertions in the affidavit. Instead, a local superintendent of schools may only require the supporting documentation and specified contact information after the student is enrolled. Also, instructions that accompany the affidavit form were modified to indicate that the supporting documentation is necessary only when required by the local superintendent.

Based on her experience throughout the process of enacting and implementing this original and amended legislation, Ms. Owens has some advice for others interested in similar bills:

  • Prior to introducing the legislation, reach out to one or two school district leaders who are receptive to the idea. They can help identify potential challenges with implementation and ways to address those challenges in the language of the bill. 
  • Include provisions in the law calling for a forum to review implementation and make improvements as needed.

For more information concerning this Maryland law, its enactment and implementation, please contact Pat Owens, President/CEO of Grandfamilies of America, at owenspat@aol.com.

Finally, please note that the summaries of the laws and legislation in this analysis are based on the research conducted for this website and available for all users in the state law and legislation database. That database, as well as the other information on this website, is an ongoing project. If we have omitted any relevant information from this analysis or if you have any other comments or suggestions, please contact its author: Ana Beltran, Special Advisor, Generations United, at abeltran@gu.org.

 


[1] Cal.Fam.Code § 6550 and 6552
[2] R.I. Gen. Laws section 16-64-1.

[3] Ind. Code Ann. section 20-26-11-2.

[4] Tex. [Ed.] Code Ann. Section 25.001

[5] N.Y. [General Obligations] Law section 5-1551, et seq.

[6] Ariz. Rev. Stat. section 15-763.01; 70 Okl.St.Ann. § 13-123.1

[7] 105 Ill. Comp. Stat. 5/14-8.02a.; Neb. Rev. Stat. section 79-1161; N.H. Rev. Stat. section 186-C:14.