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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11531
Experience:  Licensed Texas General Practice Attorney
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My wife and I live in Nevada, and are in our third year of

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My wife and I live in Nevada, and are in our third year of raising, under a non-judicial guardianship (albeit with a notarized assignment of guardianship from the mother--our daughter) two grandchildren, ages 5 and 12. The mother has sole custody of the 12-year old, although the father has limited, reasonable visitiation with her, and has been paying limited (~$300/month) child support for the past five-six years or so. The mother has sole custody of the 5-year old, whose father, whereabouts unknown, has never even seen him, and takes no responsibility. Recently, the DA has caught up with him, and around $30-60/month child support apparently is taken from his paycheck. I am 72 and am receiving Social Security benefits. I would like to obtain social security benefits for my Grandchildren, but SS tells me that unless the natural parents are deceased or disabled (which they are not) that a guardian grandparent cannot receive benefits, unless they adopt the grandkids. My first question, is that true? Is there not some type of special non-adoption status that can qualify me to get the enhanced SS benefits (approximately 50% of my current SS benefits per kid)? If not, how difficult will it be to adopt the kids, and what do I have to do in order to do so?
Submitted: 1 year ago.
Category: Family Law
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

They were correct, in that a grandparent custodian (even a legally appointed guardian) can't get social security benefits for a grandchild unless the parents of the child are either deceased or disabled. Assuming the parents are not deceased and/or disabled, then they would not be eligible. They could be eligible if they were your legal children, which is what the adoption is all about.

ScottyMacEsq :

Now the main problem with adoptions is consent. You either (a) need consent of all the parents of the children, or (b) consent of some and a termination of rights of the others.

ScottyMacEsq :

An adoption is not just making you the legal parents of the child; it's making the biological parents no longer the legal parents.

ScottyMacEsq :

Individuals who are not legal parents generally don't have an obligation to support.

ScottyMacEsq :

And that would also have an impact on the child support.

ScottyMacEsq :


Individuals who are not legal parents generally don't have an obligation to support.



ScottyMacEsq :

And the court would most likely terminate the child support order if it ordered the termination of the parental rights (which would be necessary to give you those rights).

ScottyMacEsq :

Now as to how you do this, it's preferable to get an attorney to handle the process, although I do know that they are expensive. Contact legal aid in your area to see if there are any attorneys that would be able to assist you pro bono (no or low fee).

ScottyMacEsq :

If not, you can do this on your own, although there's a bit of a learning curve. You can go to the courthouse, which should have a law library, and in this library there should be a number of books that have forms that you would need to file.

ScottyMacEsq :

The clerk at the courthouse may be able to assist you in the process, but they can't give you legal advice (only an attorney could do that).

ScottyMacEsq :

You can also find a lot of information at the regular local library (ask about the law section, as well as any online resources that they might have for legal forms).

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Would it be possible to adopt the 12-year old without terminating the parental rights of the bio-dad, in order to preserve his child support? He is not on the birth certificate, but the DA eventually determined his paternity and starting hitting his paycheck for child support. Early on (week 1 of child's life), he had filed for sole custody, which was denied by the Family Court Judge with prejudice. At the time, he had not been with Mom since month-one of her pregnancy, either physically or financially. He has never had any parental rights adjudicated.

ScottyMacEsq :

Assuming that he is the legal father (and if he's paying child support, that's a good presumption) then I don't think that a court would allow an adoption without both parents' consent. I guess it's possible that if he consents to the mother giving up her rights, that the grandmother could become a legal parent, but I've never seen that actually happen.

ScottyMacEsq :

I've only seen grandparent adoptions where both biological parents give up their rights.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

I have been out of town for the weekend, and unplugged. Followup question. Is there some way to obtain child support from the mother?

ScottyMacEsq :

Sorry for the delay, I was out of the office until now...

ScottyMacEsq :

With adoption, that generally terminates any support obligation (since the parents no longer are legally parents of the children, they don't have any legal obligation to continue to support).

ScottyMacEsq :

But ultimately that depends on the judge. Most of the time they're not going to require child support from the parent who has no legal rights or responsibilities, but it's possible that they could in the right situation.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!\

Customer:

Based on the above, we are considering maintaining the guardianship status with one or both of the kids. Therefore, my followup question was, assuming we still maintain guardianship, is there a basis for obtaining child support from the mother?

ScottyMacEsq :

Yes. If the mother is not the custodian of the child, you can get child support from her.

ScottyMacEsq :

(sorry about the confusion, I thought you meant if you were to adopt)

ScottyMacEsq :

But non-custodial parents do have an obligation to pay child support to the custodian of the child

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

ScottyMacEsq :

Did you have any other questions before you rate this answer?

ScottyMacEsq :

 


If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (~45 minutes) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better). If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

 

ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11531
Experience: Licensed Texas General Practice Attorney
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