I. Executive Summary:
Ohio Senate Bill 58 proposes significant amendments to the Ohio Revised Code, specifically expanding the eligibility for individuals to execute a grandparent power of attorney or a caretaker authorization affidavit. The bill broadens the definition of “relative” who can be designated as a caregiver and includes nonrelative adults with a bond to the child or family. These legal instruments allow designated caregivers to make decisions regarding a child’s care, physical custody, control, school enrollment, access to educational and behavioral information, consent to school-related matters, and consent to medical, psychological, or dental treatment. The bill emphasizes that these instruments do not grant legal custody or affect the rights of the parent, guardian, or custodian in future custody proceedings.
II. Main Themes and Important Ideas/Facts:
A. Expansion of Eligible Caregivers:
- Current Law Focus: Existing law primarily focuses on “grandparent caretaker.”
- Proposed Expansion: SB 58 broadens the scope to include:
- A more extensive list of relatives by blood, adoption, or marriage, including “the child’s stepparent, grandparent, stepgrandparent, uncle, aunt, sibling, stepsibling, half sibling, nephew, niece, first cousin, or any relative denoted by the prefix ‘grand’ or ‘great’.” (Page 2, lines 4-11)
- “A nonrelative adult who has a relationship or bond with the child or the child’s family.” (Page 2, lines 12-13)
- Rationale: This expansion aims to provide more options for parents, guardians, or custodians who need to temporarily entrust the care of their child to a trusted adult, recognizing the diverse support networks families may have.
B. Grandparent Power of Attorney:
- Purpose: Allows a parent, guardian, or custodian to grant specific rights and responsibilities to a grandparent caretaker with whom the child is residing.
- Granted Rights: These include the ability to:
- “enroll the child in school” (Page 2, lines 27-28)
- “obtain from the school district educational and behavioral information about the child” (Page 2, lines 29-31)
- “consent to all school-related matters regarding the child” (Page 2, lines 31-33)
- “consent to medical, psychological, or dental treatment for the child” (Page 2, lines 33-35)
- Limitations: The power of attorney explicitly cannot grant authority to consent to the “marriage or adoption of the child” (Page 3, lines 36-38) and “does not affect the rights of the parent, guardian, or custodian of the child in any future proceeding concerning custody of the child or the allocation of parental rights and responsibilities for the care of the child and does not grant legal custody to the attorney in fact.” (Page 3, lines 38-45)
- Required Form: The bill mandates the use of a specific form for the power of attorney, with prescribed language and warnings. (Page 3, lines 47-126)
- Parental Certification: The parent executing the power of attorney must certify that they are doing so for specific reasons, such as their “physical or mental condition,” being “Homeless or without a residence,” entering “a residential treatment program for substance abuse,” or having a “well-founded belief that the power of attorney is in the child’s best interest.” They must also certify that it’s not for the sole purpose of school enrollment for athletic or academic advantages. (Page 4, lines 71-86)
- Notice to Other Parent: The creating parent generally must notify the other parent who is not the residential parent and legal custodian, unless certain exceptions apply (e.g., inability to locate, prohibition from receiving notice, termination of parental rights). (Page 6, lines 157-161)
- Duration and Revocation: The power of attorney is valid until revoked by the parent, the child ceasing to reside with the grandparent caretaker, or a court order. Revocation requires written notification. (Page 5, lines 102-106, and Page 8, lines 182-191)
- Reliance by Third Parties: Schools and healthcare providers are protected from professional disciplinary action for relying on a properly completed and notarized power of attorney. (Page 11, lines 278-286, and Page 12, lines 290-301)
- Disputes: The bill outlines a process for grandparent caretakers to potentially seek custody through a juvenile court complaint if the power of attorney is revoked or the child is removed from their care. (Page 26, lines 678-737)
C. Caretaker Authorization Affidavit:
- Purpose: Similar to the power of attorney, this affidavit allows a grandparent caretaker to have the authority to “enroll the child in school, to discuss with the school district the child’s educational progress, to consent to all school-related matters regarding the child, and to consent to medical, psychological, or dental treatment for the child.” (Page 14, lines 351-358)
- Execution by Grandparent Caretaker: The affidavit is executed directly by the “grandparent caretaker” under specific circumstances. (Page 14, lines 359-361)
- Parental Contact Exceptions: A grandparent caretaker may execute the affidavit without attempting to locate a non-established father or a parent whose relocation notice is prohibited or whose parental rights have been terminated. (Page 14, lines 361-372)
- Required Form and Certification: The bill provides a specific form for the affidavit, including certifications similar to the power of attorney, such as not being for the sole purpose of school sports or academics. (Page 15, lines 374-418)
- Notarization and Filing: The grandparent caretaker’s signature must be notarized and the affidavit must be filed with the juvenile court within five days of execution. (Page 16, lines 419-425)
- Limitations: Similar to the power of attorney, the affidavit “does not affect the rights of the child’s parents, guardian, or custodian regarding the care, physical custody, and control of the child, and does not give the grandparent caretaker legal custody of the child.” (Page 17, lines 445-449) It also does not grant authority for marriage or adoption. (Page 22, lines 589-595)
- Termination: The affidavit terminates upon the death of the grandparent caretaker or written notice of negation, reversal, or disapproval from the parent, guardian, or custodian. (Page 17, lines 460-465, and Page 21, lines 552-559)
- Reliance by Third Parties: Schools and healthcare providers are protected for relying on a properly executed and notarized affidavit, unless they have actual knowledge of its invalidity or disapproval. (Page 17, lines 465-472, and Page 22, lines 578-588)
- School Enrollment: The bill amends section 3313.649 to explicitly state that a grandparent caretaker with a power of attorney or a caretaker authorization affidavit “may enroll the child who is the subject of the power of attorney or affidavit in a school in the school district in which the grandparentcaretaker resides.” (Page 51, lines 1400-1406)
D. School Enrollment and Records:
- Definition of “Parent”: The bill amends section 3313.64 to redefine “parent” for the purpose of school enrollment to include “the grandparent designated as a child’s caretaker when the caretaker is the attorney in fact under the a power of attorney” and “the grandparent that executed the affidavit” under a caretaker authorization affidavit. (Page 31, lines 855-865)
- School Records: While granting access to educational information, the bill emphasizes that these instruments do not preclude parents, guardians, or custodians from having access to school records. (Page 20, lines 535-538, and Page 22, lines 583-586)
- Enrollment Delays: The bill prohibits denying enrollment due to delays in receiving required records, particularly for children under the care of domestic violence shelters. (Page 42, lines 1171-1176)
E. Considerations Regarding Child Welfare:
- Abuse and Neglect: The proposed forms for both the power of attorney and the affidavit include questions about prior convictions or findings of abuse or neglect by the designated caregiver. (Page 9, lines 220-228, and Page 19, lines 493-501, and Page 24, lines 645-657)
- Best Interest of the Child: The parent can execute a power of attorney based on a “well-founded belief that the power of attorney is in the child’s best interest.” (Page 4, lines 83-84) The process for a grandparent caretaker to seek custody after revocation or removal involves demonstrating that the termination or removal is not in the child’s best interest. (Page 26, lines 706-712)
- Temporary Orders: The juvenile court has the authority to make temporary dispositions for the child’s best interest pending hearings on custody complaints filed by grandparent caretakers. (Page 26, lines 713-719)
F. Other Notable Amendments:
- Jon Peterson Special Needs Scholarship Program: The definition of “eligible applicant” for this program is expanded to include the “grandparent caretaker of a qualified special education child” under a power of attorney or caretaker authorization affidavit. (Page 28, lines 763-766)
- McKinney-Vento Act: The bill reaffirms that all school districts must comply with the McKinney-Vento Homeless Assistance Act regarding the enrollment of homeless children. (Page 45, lines 1251-1260)
III. Potential Implications:
- Increased Flexibility for Families: The expanded definitions and eligibility criteria could provide greater flexibility for families in arranging temporary care for their children when needed.
- Enhanced Rights for Relatives and Bonded Adults: Relatives beyond grandparents and nonrelative adults with strong connections to the child could be empowered to act on the child’s behalf in crucial areas like education and healthcare.
- Potential for Disputes: While the bill aims to maintain parental rights, disagreements between parents and designated caregivers could arise, potentially leading to court involvement.
- Administrative Burden on Schools and Healthcare Providers: Schools and healthcare providers will need to be familiar with the expanded definitions and the requirements for valid power of attorney and caretaker authorization affidavits.
- Impact on Custody Proceedings: While explicitly stating it doesn’t grant legal custody, the existence of these instruments and any subsequent legal actions could influence future custody decisions.
IV. Conclusion:
Senate Bill 58 represents a significant effort to modernize and expand the legal framework for temporary caregiving arrangements in Ohio. By broadening the definition of eligible caregivers and outlining clear procedures for power of attorney and caretaker authorization affidavits, the bill seeks to better accommodate the diverse needs of families while emphasizing the continued rights of parents, guardians, and custodians. The potential impact on school enrollment, access to healthcare, and the role of the juvenile court system warrants careful consideration as the bill moves through the legislative process.