In every state in the U.S., the law is clear that a child’s parents have a duty to provide support to a child – not the State. But are grandparents required to provide support to grandchildren under their care and custody?
Under common law, biological or adoptive parents have a duty to support their children. That duty is based on the moral and social obligations of a parent to support the child he decided to bring into the world. Additionally, under common law, the parental obligation of support to a child is not dependent upon marriage. The parental duty to support a child flows from the idea of human and social responsibility, and was a principle conceived from natural law.
In a recent Connecticut case, the court outlined the duties entailed in parenthood:
- Expression of love and affection for the child;
- Expression of personal concern regarding the health, education and welfare of the child; The duty to supply the essentials for a child such as: food, clothing and medical care;
- The duty of a parent to provide adequate housing for a child;
- The duty to furnish social and religious guidance to the child.
Based on the tenet that a parent is responsible for the support and care of her child flows the general principle that a grandparent is not responsible for the support of his grandchild. Such a principle is in conflict with laws dating back to the early 1600s. The Elizabethan Act of 1601 for the Relief of the Poor stated that parents, grandparents and children of poor, old, blind, lame and incompetent people, or other persons unable to work, were required to care for and support “every such poor person.” The American colonies adopted these laws and their popularity grew. By the 1950s, approximately 45 U.S. states had adopted poor laws.
While these poor laws delegated a duty of support to grandparents, the courts have refused to find a duty based on the poor laws. In Levy v. Levy, a Louisiana mother brought a lawsuit against the paternal grandparents of her children, seeking child support. The Louisiana poor law statute stated, “Children are bound to maintain their father and mother and other ascendants, who are in need, and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal.” Based on this law, the lower court found a duty of the grandparent to pay support, which the grandparents appealed. The appellate court concluded that the grandparents could not be held liable for child support and instead stated that the father of children had a primary obligation to support the children. The court went on to say that no obligation of support could be placed on the grandparents if the court could determine the father’s whereabouts and judicial proceedings could be taken against him for support. Even under the poor laws, this case showed that grandparents do not have a primary obligation to pay support to their grandchildren.
Common Law Exception
It is a well-accepted principle that stepparents owe no duty of support to a step-child, unless they are standing in “loco parentis” to that child. When a stepparent does stand in loco parentis (acting in the parental capacity) for that stepchild, the obligation of support for the stepparent is only secondary, not primary. The natural parent of the child still has a primary duty to support the child. Plainly stated, the duty of a stepparent does not relive the natural parent of his duty to support the child. The same principle is applicable to grandparents: a grandparent does not have a duty to such a grandchild, unless the grandparent is acting in loco parentis to the grandchild. When a grandparent stands in loco parentis to a child, as with a stepparent, the support obligation to the child, is secondary in nature.
Two cases that highlight the obligation of grandparents to pay support are: Savoie v. Savoie and Baker v. Baker. In Savoie v. Savoie, grandparents were granted temporary custody of their granddaughter. The grandparents separated, the grandmother sued the grandfather for support, and a temporary order of support was entered. In the final judgment of divorce, the grandmother was granted custody, and the court order required the grandfather to pay support for the grandchild. The grandfather appealed the case, but was unsuccessful. The appellate court reasoned that, while the general rule that a grandparent owes no duty of support to a child was valid, the grandfather assumed an in loco parentis relationship with his grandchild since three days after her birth. The court rationalized that because the grandfather assumed the responsibility to support and raise the child, and his conduct prevented adoption of the child, the grandfather could not deny his obligation of support to the child.
In Baker v. Baker, the court decided differently. The grandparents in Baker decided to divorce after 20 years of marriage. During the marriage, the grandparents brought their two grandchildren into their home to live with them. During the divorce proceedings, the grandmother asked the court to include expenses for the grandchildren in her alimony award. The grandmother desired to have these expenses included because of the grandfather’s encouragement to take the children. The court declined to do so, because the obligation of the grandfather could only be imposed if the court applied the doctrine of in loco parentis. The court concluded that once the grandfather left the home, he was no longer in loco parentis to the grandchildren and could not be held responsible for their support.
The differences between Baker and Savoie revolve around the nature of the relationship between the grandparent and the grandchild. In Savoie, a court order granted the grandfather and grandmother custody, which the grandfather agreed to. Therefore, the grandfather was unable to deny support to the grandchildren by ending the in loco parentis relationship. In contrast, in the Baker case, there was no court order for custody, so the in loco parentis relationship could be terminated at any time, by either party. Once the “in loco parentis” relationship ended, there was no longer a duty of support owed by the grandparents.
When a grandparent is ordered to pay child support for his grandchildren under in loco parentis, the child support guidelines of the state will apply.
New Statutory Liability
Currently, there are 13 states that have passed laws providing for grandparent liability for child support. Some of the laws were enacted during the establishment of 42 U.S.C. § 666(a)(18), and limit grandparent liability to cases where the grandchild’s parents are actually minors and the parent with custody receives public assistance. On the other hand, some states have laws that preceded the Welfare Reform Act and are modeled after the Elizabethan Poor Laws. The applicable statute in North Carolina reads:
“N.C. Gen. Stat. § 50-13.4: In the absence of pleading and proof that the circumstances otherwise warrant, parents of a minor, unemancipated child who is the custodial or noncustodial parent of a child shall share this primary liability for their grandchild’s support with the minor parent, the court determining the proper share, until the minor parent reaches the age of 18 or becomes emancipated. If both the parents of the child requiring support were unemancipated minors at the time of the child’s conception, the parents of both minor parents share primary liability for their grandchild’s support until both minor parents reach the age of 18 or become emancipated. If only one parent of the child requiring support was an unemancipated minor at the time of the child’s conception, the parents of both parents are liable for any arrearages in child support owed by the adult or emancipated parent until the other parent reaches the age of 18 or becomes emancipated.””
Grandparent Support in the Context of Visitation
At common law, once a parent forbids contact with a child, any relatives other than a child’s mother or father lack legal right to visit or communicate with that child. This rule stems from the constitutional rights parents possess to the care, custody, and management of their children. These constitutional rights originate from the Fifth and Fourteenth Amendments of the U.S. Constitution, which prohibit interference by the government with a person’s individual liberty. However, those rights are not absolute. The State has power to consider the well-being of its children/citizens. In looking at the best interests of a child, the State may determine that certain kinds of visitation are in the best interests of a child. During the 1970s-1980s, all U.S. states instituted some form of law granting grandparents some kind of visitation rights, thus illustrating this type of visitation as being in the best interests of the child.
During the 1990s, a number of states deemed their grandparent visitation statutes unconstitutional when the statute allowed an intrusion into an “intact” family. The case of Hawk v. Hawk supports this principle. In the case, married parents of two children fought against the grandparents seeking visitation. The court in Hawk invalidated the state’s grandparent visitation statute, because of the Federal and State law that pronounced a constitutional right to family autonomy/independence. Additionally, Federal cases support the constitutional rights of a parent to privacy, and the ability to raise a child as the parents see fit, and the only intervention on behalf of the state occurs when there is harm to the child. Without the presence of significant harm to the child, no intervention can be had. The court concluded:
“We hold that . . . the Tennessee Constitution protects the privacy interest of these parents in their child-rearing decisions, so long as their decisions do not substantially endanger the welfare of their children. Absent some harm to the child, we find that the state lacks a sufficiently compelling justification for interfering with this fundamental right.”
The cases that followed Hawk expanded the idea of what an “intact family” meant as it related to constitutional protection. The dictionary definition of family consists of a mother, father, and children. In Fisher v. Gaydon, the court decided that a grandparent could not seek visitation of a grandchild in a “family” composed of a mother and child, even though prior paternity proceedings had been completed. As highlighted in the case of Lambert v. Riddick, the court stated that having both natural parents in the home was not required to classify as an “intact family.” In fact, the court stated that an “intact family” included a single parent living with his/her child.
Courts across the U.S. have adopted varying definitions of what it means to be an “intact family,” preventing grandparents from seeking visitation. In Hawk, Tennessee has stated that grandparents are unable to seek visitation to see grandchildren in an intact family, and the Tennessee Supreme Court went on to define an intact family. The court stated that an intact family consists of adoptive parents and children. The Tennessee Court of Appeals has defined an “intact family” as including:
- Stepparents, parents and children living together;
- A single mother living along with her children;
- A parent living with his/her children after the death of the other parent.
Florida has provided the most recent example of the elasticity of the “intact family.” In Von Eiff v. Azicri, a couple married, had children, and the mother of the children died. The father of the children was left with custody of the children, and he later remarried. The parents of the deceased mother requested visitation from the court. The court analyzed the Florida grandparent visitation rights statutes, which provided: The court shall, upon petition filed by a grandparent of a minor child, award reasonable rights of visitation to the grandparent with respect to the child when it is in the best interests of the minor child if: (a) One or both parents of the child are deceased. The court concluded that the statute was unconstitutional. The grandparents’ argument is consistent with the general rule of a parent’s right to privacy with parenting decisions, but they argue that the death of a parent, the mother in this instance, triggers government intervention. They assert that Florida has a compelling interest in preserving the familial bond between grandparents and grandchildren, especially when one or both parents are deceased.
In applying Beagle, a state is not permitted to force grandparent visitation against the express wishes of the father before the death of the biological mother, in the absence of substantial harm demonstrated to the court. The court reasoned, “We find nothing in the unfortunate circumstance of one biological parent’s death that would affect the surviving parent’s right to privacy in a parenting decision concerning the child’s contact with her grandparents.”
The question that arises regarding grandparent support law and visitation is whether it is sound public policy to require grandparents to pay support for grandchildren they may not have a right to see.
Support For Grandchildren in Grandparents’ Custody
As previously stated, a biological parent has the primary obligation to provide support to a child. Therefore, a biological parent has a continuing obligation to pay support even when he/she does not have custody. Such a methodology has allowed for grandparents to sue biological parents for support of children who are in their custody. In Department of Health and Rehabiliative Services v. Thomas, the court determined that a grandmother who had custody of a child was entitled to child support payments from the child’s father. Not only is a parent required to pay support for a child in a grandparent’s custody, but failure to make such payments may be considered abandonment, leading to termination of parental rights.
Just like in any other support case, a grandparent with custody of a child must show the court (1) evidence of the parents’ incomes; and (2) the parents’ ability to pay. Due to an increased number of grandparents caring for their grandchildren today, and other laws currently in effect, like the Welfare Reform Act and PRWORA, state government and grandparent advocacy organizations are pushing for grandparents to assert their rights to child support from parents.
In summary, a grandparent’s obligation to pay child support for grandchildren he may not be entitled to see part of a shift away from the public support of children to the private support of children. Thus, the assistance of grandparents in enforcing child support obligations against their own children supports the overarching public policy of the government of support being paid by anyone but the government.