Defining a Temporary Parental Consent Agreement
A temporary parental consent agreement is a legal document that is signed by a parent, grandparent, or family member of a child granting temporary powers and consent to a caregiver with whom the child resides (a "caregiver," such as: a non-parent or relative that is caring for a child). In making such a determination, a court will consider whether a child needs a guardian for his or her person or estate . It will generally consider whether circumstances and risks are such that it is in the best interests of the child for a temporary guardian of their person to be appointed for a short time. These agreements are to be used as an alternative to applying for Guardianship of the person, which is involuntary in nature, costly, and time consuming. A temporary parental consent agreement may also be known as a temporary guardianship, temporary guardianship of the person, consent, or caretaker authorization affidavit.
Essential Components of a Temporary Parental Consent Agreement
A Temporary Parental Consent Agreement is a powerful tool in cases where the temporary transfer of legal rights to a child is contemplated. The custodial parent may have benefits, including financial assistance, if they are not legally responsible for their child. The custodial parent may also need the assurance that a child’s interests will be protected while in another’s care. The receiving parent may need a workable framework which will guide them in their new role of caretaker. For all of the potential to do good that a Temporary Parental Consent Agreement can do, however, it may also create needless confusion and strife when it is improperly drafted or contains missing or incorrect information. Therefore, care should be taken to ensure that the agreement contains the following:
• Identification of the Parties: Name and age of all parties related to the child
• Name and Age of Child: The name and age of the child
• Duration: The length of time that the child will be under the receiving parent’s care
• Financial obligations: Whether the child will be entitled to financial support from the custodial parent, and the amount.
• Specific Consents and Making Arrangements: It is essential that the agreement outline the exact scope of the rights that are being transferred to the receiving parent. If there are any limitations to the transfer of rights, the limitations should be included.
• Contact with the Child: Outline how the custodial parent will be provided access to the child, if at all
• Specific Terms related to Decision-Making: The agreement should be very precise on the types of medical and educational decisions that the receiving parent is entitled to make on behalf of the child
• Clear Language: While some people can understand legalese, generally it is better to be straight forward and avoid complex language. The terms of the agreement should be clear so that everyone understands them.
• Emergency Contacts: The agreement should include the names of emergency contacts in the event of an emergency
• Legal Compliance: The law varies from state to state and an attorney should be consulted as to their state’s specific requirements.
Legal Considerations and Implications
Temporary parental consent agreements can have important legal implications. They are a legally binding contract between the parent (who is temporarily giving up custody of the child), the other party (who is getting temporary custody of the child), and the child’s guardian (who is usually the state of Illinois). Medical records, bills, school records and travel can all be controlled by the temporary custodian. There are some special rules that apply to temporary custodial agreements under the Illinois Parentage Act, 750 ILCS 46/1 et seq. Healthcare providers cannot pay for or provide medically necessary health care to a child under the age of 18 only because a child has a temporary custodial agreement with proper authority. Contracts with children are voidable and unenforceable.
Some judges will especially rule that a temporary custodial agreement will end if it is not formally converted to a permanent order. Under the Parentage Act, a custodial agreement terminates when the court finds that (1) the agreement was not filed with the clerk, (2) it was not presented to the court, (3) the court has not adopted it or (4) it has expired. 750 ILCS 47/705. Custody may revert back to the parent or guardian who obtained the temporary custodial agreement. The document can also be rejected by a parent, guardian or custodian of the person who has executed a custodial agreement to commence a parentage proceeding.
A temporary custodial agreement lasts for up to one year, at which time if not revoked a second one could be issued for another twelve months. 750 ILCS 47/725. But if parents have no other choice, they can request that the court gives permission for the custody to remain the same after the end of the temporary custodial agreement. After the expiration of the custodial agreement, the court cannot hold the child’s parent in contempt for nonpayment of temporary child support. The temporary custodian may file a petition for another temporary custodial agreement.
Formal court procedures may be waived. While earlier versions of the law required a judge to authorize a temporary custody agreement, the new law allows them to be entered into simply by filling out the necessary forms with signature and date. Still, parties are not advised to enter a custodial agreement without first consulting with a qualified family law attorney. Simply put, there are many legal issues that could arise with regard to custody of children that are left open-ended until certain arguments are made and facts are shown to the court.
Court intervention may be needed. For instance, a parent may put the life in jeopardy by moving a child to a country that does not have a Child Abduction Treaty in place. In that case, the temporary custodian could file a petition for writ of habeas corpus. The custodian may then file a petition to appoint a neutral third-party to establish a visitation schedule.
Judges may carefully look at whether a party complied with the law regarding custodial agreements. Courts may also analyze whether the facts are sufficient for an order or determination and can hold a hearing on the issue, in addition to other requirements. 750 ILCS 47/1301. Guardianship is revoked while the temporary custodial agreement is in effect.
Custody of a child may be negotiated without the court’s help. However, in some cases, the parties may need to have the court issue a temporary order. While this is not typical, it may be necessary where an agreement among the parties is not reached. For these reasons, upon entering into a temporary custodial agreement, it is crucial to consult with an experienced family law attorney to help navigate the legal system.
Constructing a Temporary Parental Consent Agreement
A temporary parental consent agreement is an important document that should be approached methodically. Organizations which are considering entering into such an agreement should adhere to the following process:
- Collect names of all parties who may have a claim at guardianship of the child. Therefore, it is important to obtain copies of the parents’ birth certificates and marital license (if married), as well as a copy of the caretaker’s birth certificate.
- Ask the parent(s) of the child questions and record the responses.
- Research the state law to determine required formalities. Though it varies by state, most require notarial acknowledgment of the consent. Alternatively, some states permit a caretaker to notarize the consent form. The notarized consent form need not be signed in the presence of the child though the child must be informed of the provisions therein.
- Draft the temporary parental consent agreement utilizing existing statutory forms when available, and using the completed questionnaire as a starting point.
- Present the agreement in draft form to the parent(s) or guardian(s) of the child. Collect signatures.
- Retain copies for all parties.
Remember, a temporary parental consent agreement should only be used for a limited period of time after which the child must be returned to the parent(s) or guardian(s). Failure to do so may result in criminal sanctions, damage awards against you, and loss of goodwill.
Common Situations for Implementation
There are several scenarios in which temporary parental consent agreements come in handy. Here are a few:
Medical treatment – If you want to allow someone else the legal authority to make medical decisions for your child and/or to consent to a medical treatment for your child, a temporary parental consent agreement is useful. For instance, if you are a service member who you’re away at war and your ex-spouse/partner retains legal responsibility for your child, a temporary parental consent agreement will allow your ex to sign for your child to receive a vaccination, a medical procedure, etc. without having to confer parental rights to that person.
School – If you want someone else to be able to enroll a child in school and/or to access important information about a child’s education, you can use a temporary parental consent agreement. For example, if you are an aunt who has legal custody of your niece and her parents want to change schools and enroll her in a different school, the parents may have to confer their parental rights to you (which is not easy to do – I can help you with this). If your niece is still living with you, you can use a temporary parental consent agreement to allow her parents to enroll her in the new school.
Travel – If you want someone other than a child’s parents (like a stepparent or an aunt or uncle) to travel with the child and/or apply for a passport for the child , you should use a temporary parental consent agreement.
Temporary guardianship – If you will be temporarily out of the country but want someone else to stay with and care for your child while you’re gone, you can use a temporary parental consent agreement to grant that person temporary guardianship over the child. It also gives that person (the temporary guardian) the authority to make medical decisions for the child as well.
In any of these situations, a temporary parental consent agreement is a good idea if a parent cannot be found or if the parent is unwilling to give their consent to the proposed course of action with the child. For example, if a military wife wants her husband’s parents to travel with their child while they are deployed for months, she would need his automatic consent to do so. She would also need to get his consent for the grandparents to travel with their child abroad or change schools. If he’s nonresponsive for months, a temporary parental consent agreement would allow the grandparents to travel with the child.
The important thing to note is that a temporary parental consent agreement will have no effect once the parent returns. It provides only temporary consent and authority to the person with whom the parent has left his or her child.
Common Pitfalls and How to Avoid Them
Despite the benefits of temporary parental consent agreements, there are also significant risks that must be considered. These include the potential for misunderstanding or misuse of power by divorcing parents as well as incomplete consent by the non-custodial or non-primary parent. There is also the risk of inadequate enforcement if the agreement is not properly documented or codified within a bigger framework intended to govern custody and support arrangements in the long term.
Fortunately, these risks can be mitigated in many ways. For example, clear, concise, and detailed terms can minimize problems associated with misunderstandings while continuously reviewing and updating arrangements can help ensure that all terms created with one intention remain relevant as situations change in the future. Where the risks of misuse of power are concerned, parents may benefit from including a neutral third party to help negotiate and draft the agreement, such as a family law attorney, marriage counselor, or financial advisor.
Clearly documenting all terms and codifying the agreement as needed will help mitigate the risk of inadequate enforcement. For example, parents might consider reducing their agreement to writing and filing it with the court to ensure full enforceability across all jurisdictions. In addition, your attorney may be able to help you create a comprehensive plan for ongoing coordination, so you can avoid disputes in the future.
Key FAQs
How long are temporary parental consent agreements valid for?
Most temporary parental consent agreements are valid for 30 to 60 days, depending on your child’s school policy. Some schools may ask parents and guardians to renew their consent forms each semester before the start of their child’s school year. A temporary parental consent agreement will remain effective for the duration of your consent period, or until you revoke the agreement.
Can I revoke a temporary parental consent agreement?
A temporary parental consent agreement will remain effective until the end of the consent period or until you revoke the agreement in writing. The ability to revoke a temporary parental consent form for prescriptive medications depends on the school’s policy. The guidelines for prescription drugs , nonprescription medication, vitamins, supplements, and topical preparations may all vary.
Are temporary parental consent agreements legally binding?
Temporary parental consent agreements are generally straightforward and allow the parent to grant permission for their child’s school to administer certain medications, topical ointments, and supervise your child while on field trips, or other special events. However, your consent may not be binding upon the school, if the parent has provided conflicting instructions.