Introduction

The passage of Ohio House Bill 130 on July 20, 2004 helped afford grandparents temporary legal rights to their grandchildren where they are living with the grandparents, and the parents, guardian, or custodian of the grandchildren cannot be located. The law regarding Caretaker Authorization Affidavits has been codified in Ohio Revised Code §3109.65 to §3109.73 and contains information and forms that the grandparents must fill out to obtain specific legal rights as to their grandchildren until such time as specified by statute. These legal rights include the grandparents’ ability to provide care, control and consent over the child in regard to schooling and medical treatment, decisions traditionally reserved for the parent, guardian, or custodian of the child. These provisions not only give grandparents legal rights over the grandchildren for a specified period of time, but also have the effect of providing protective services to children when their parents, guardian, or custodian cannot be found after a reasonable search has been conducted.

How the Caretaker Authorization Affidavit Works

Pursuant to Ohio Revised Code §3109.65, when a child is living with their grandparent and the grandparent cannot locate the child’s parent, guardian, or custodian after a reasonable search, the grandparent can fill out a caretaker authorization affidavit found in Ohio Revised Code §3109.67. There are circumstances, however, when a grandparent will not need to notify the child’s parent before obtaining temporary legal authority to care for the child under §3109.65(B). For example, a grandparent does not need to give notice to the father of the child if paternity has not yet been determined, if the parent is legally barred from obtaining notification of a child’s relocation as provided by statute or if the parental rights of the parent have been terminated by a juvenile court.

The effect of the caretaker authorization affidavit as found in Ohio Revised Code §3109.66 is to enable the grandparent to obtain the temporary legal authority to control the child’s upbringing with regard to the child’s education, activities, and all forms of medical treatment. This authority enables the grandparent to make parenting decisions that otherwise could not be made absent the consent of the child’s parent, guardian, or custodian. If a parent does come back into the child’s life, the decision of a grandparent regarding medical treatment or the child’s enrollment in a school will not stand against a parent’s contrary decision unless the parent’s decision will endanger the child in any way.

The caretaker authorization affidavit must be filled out by the grandparent and notarized to grant the grandparent legal authority to make parenting decisions for the child. If a grandparent provides false information on this affidavit, the grandparent could be subject to criminal sanctions pursuant to Ohio Revised Code §2921.13 and Chapter 2929.

Procedure for Filing the Caretaker Authorization Affidavit

Within five days after the caretaker authorization affidavit has been executed (filled out by the grandparent and notarized), the grandparent must file the affidavit in the juvenile court located either in the grandparent’s county or in another court with jurisdiction over the child based on a motion previously filed or proceeding conducted therein in regard to the child. If the grandparent executes an additional caretaker authorization affidavit over a child who is currently under a previously executed caretaker authorization affidavit, the filing of the affidavit must be carried out in the same manner as listed above.

Limits on Grandparent’s Authority under the Caretaker Authorization Affidavit

While the grandparent is given the legal authority to make parenting decisions regarding the child’s well-being and education, the caretaker authorization affidavit does not give the grandparent legal custody of the child. In addition, pursuant to Ohio Revised Code §3109.69, the affidavit in no way serves to terminate the parental rights of the parent, custodian, or guardian of the child and does not enable the grandparent to consent to the child’s adoption or marriage.

When the Caretaker Authorization Affidavit Terminates

Pursuant to Ohio Revised Code §3109.70, the caretaker authorization affidavit terminates at the commencement of certain events which include: automatically if it has been one year from when the affidavit has been notarized; the death of the child; a court order terminating the caretaker authorization affidavit; if the child no longer lives with the grandparent who signed the affidavit; if the child’s parent, guardian, or custodian does not agree with the grandparent’s decision regarding the child; or finally, the grandparent who filled out the affidavit has died. It is important for a grandparent who has executed a caretaker authorization affidavit to realize that their authority is limited in time and that the parents of the child can come back into the child’s life and thereby terminate the grandparent’s right to control the upbringing of the child for the specified time frame contained in the affidavit of one year.

Procedure after Termination of the Caretaker Authorization Affidavit

When the caretaker authorization affidavit terminates other than by way of the respective grandparent’s death, the grandparent must provide written notification to the following: entities the child was associated with because of the grandparent’s authority over the child such as healthcare providers and schools; the court where the affidavit was filed; and finally, any relevant individual or entity who has a relationship with the child and would continue to presume the grandparent’s authority to act on behalf of the child absent notification of the termination of the caretaker authorization affidavit.

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