Yes, grandparents can get custody of a grandchild from CPS, and federal law actually pushes in that direction: under 42 U.S.C. § 671(a)(19), every state must give preference to adult relatives over unrelated foster caregivers when placing a child removed from home.1Office of the Law Revision Counsel. 42 USC 671 – State Plan for Foster Care and Adoption Assistance There are two main ways it happens. CPS can place the child in your home as a kinship foster parent, or you can file your own petition in family court asking for legal custody. Either way, you’ll go through background checks, a home study, and court hearings. The details vary by state, but the path exists.
Act Fast: The First 30 Days Matter
When CPS removes a child, caseworkers are required to notify adult relatives within a short window, typically 30 days, and explain how to become a placement option. Grandparents who step forward early have a real advantage. Once a child has been placed in a non-relative foster home, dislodging that placement gets harder the longer it lasts.
If CPS has contacted you, respond quickly with your full identifying information, household composition, and proof you can provide for the child. If CPS has not contacted you but you know your grandchild has been removed, call the assigned caseworker or the agency’s local office and ask to be considered as a placement.
Kinship Foster Care or Legal Custody: Which Path?
Grandparents in CPS cases generally pursue one of two routes, and the choice shapes everything that follows.
Kinship foster care. CPS places the child in your home, but the agency keeps legal custody. You function as a licensed or provisionally approved foster parent. This route moves faster because CPS drives it, and you’re eligible for foster care maintenance payments to cover the child’s needs. The trade-off is that CPS stays involved, the case remains open, and a caseworker retains authority to move the child.
Legal custody or guardianship. You petition the family court directly. If the court grants custody, you have independent decision-making authority over the child, and CPS involvement typically ends. This takes longer, costs more out of pocket, and requires you to establish legal standing before a court will hear you at all.
Many grandparents start with kinship foster care because CPS facilitates it, then convert to legal guardianship or adoption once the situation stabilizes. The federal Kinship Guardianship Assistance Program was designed to make that transition easier.
Do You Have Legal Standing?
Before a court hears your custody petition, you need standing—the right to bring the case. Parents have a constitutional liberty interest in raising their children, and under Troxel v. Granville, courts must give “at least some special weight” to a fit parent’s own judgment.2Cornell Law Institute. Troxel v. Granville You can’t just argue that your home would be better. You need to show the parents are unfit or that their decisions are harming the child.
Each state sets its own standing rules. Common triggers include a parent’s incarceration, substance abuse, abandonment, or a CPS finding of abuse or neglect. If CPS has already determined the child’s home is unsafe, you’re starting from a much stronger position than a grandparent trying to override a fit parent.
De Facto Custodian Status
About a dozen states and the District of Columbia recognize a “de facto custodian.” If you’ve been the child’s primary caregiver and financial provider for a set period, typically six months for children under three and one year for older children, you can be treated with the same legal standing as a parent. The court then decides custody purely on the child’s best interests, without requiring you to prove parental unfitness first. This matters most for grandparents who have been raising a grandchild informally before CPS got involved.
Background Checks and Disqualifying Convictions
Whether you go through CPS or petition on your own, you’ll face a fingerprint-based criminal background check of national databases.1Office of the Law Revision Counsel. 42 USC 671 – State Plan for Foster Care and Adoption Assistance Some convictions are permanent bars to placement: felony convictions for child abuse or neglect, any crime against children (including child pornography), spousal abuse, rape, sexual assault, homicide, or kidnapping. Others create a five-year bar: felony physical assault, battery, or drug offenses within the past five years.
These bars apply to every adult in the household, not just the grandparent seeking custody. If a spouse or another adult in your home has a disqualifying record, the placement will be denied. States also check sex offender registries and child abuse and neglect registries.
Under the Fostering Connections to Success and Increasing Adoptions Act of 2008, states can waive non-safety licensing standards for kinship homes on a case-by-case basis.3Congress.gov. Fostering Connections to Success and Increasing Adoptions Act of 2008 Things like minimum income, specific bedroom configurations, or completing pre-service training by a set date can sometimes be relaxed for relatives. Safety standards cannot be waived for anyone.
The Home Study
The court or CPS will order a home study before placing a child with you. A caseworker or court-appointed evaluator visits and inspects the physical space: working smoke detectors, secured medications and cleaning supplies, properly stored firearms, adequate sleeping space, and a generally safe layout.
The assessment goes beyond the house itself. The evaluator interviews you, your spouse, and other household members to gauge family dynamics, emotional stability, and your grasp of the child’s needs, including schooling, medical care, and any behavioral or emotional issues stemming from the trauma that brought CPS in.
The report carries significant weight with the judge, though it isn’t the final word. If CPS runs the study as part of a kinship placement, there’s usually no cost to you. If you’re petitioning independently and the court orders a private home study, expect to pay roughly $900 to several thousand dollars, depending on your location and the complexity of the evaluation.
Filing a Custody Petition
If you’re pursuing legal custody rather than accepting a kinship placement, the process starts with filing a petition in family court. The petition sets out your relationship with the child, the circumstances that make parental custody unsafe, and why placing the child with you serves the child’s best interests. Most grandparents hire a family law attorney to draft it, though some courts offer self-help resources.
After filing, you must formally serve the petition on all interested parties: the parents, CPS if they’re involved, and sometimes other relatives with a competing claim. Professional process server fees generally run $20 to $100 per person served. Court filing fees for a non-parental custody petition typically range from nothing to about $450, depending on the jurisdiction. Many courts allow fee waivers for grandparents who can show financial hardship.
A preliminary hearing usually follows service. You present initial evidence, and the parents and CPS respond. Some jurisdictions require mediation before a contested trial. If mediation fails or the case is too adversarial, it goes to trial where both sides present witnesses and evidence.
If the Child Is in Another State
If your grandchild was removed in one state and you live in another, the Interstate Compact on the Placement of Children (ICPC) governs. All 50 states, D.C., and the U.S. Virgin Islands are parties. The receiving state must assess and approve the placement before the child can move. No child crosses state lines for foster care or custody without that approval.
The process typically adds weeks or months. The sending state submits a request; the receiving state conducts its own home study and background checks before approving or denying. The child stays in care in the sending state during the wait.
An expedited process exists under ICPC Regulation 7 for certain relatives, including grandparents, in emergencies. To qualify, at least one of the following must be true: the case involves a parent’s sudden incarceration, incapacity, or death; the child is four or younger; the child has a substantial existing relationship with you; or the child is currently in an emergency placement.
If Your Grandchild Is a Tribal Member
If the child is a member of, or eligible for membership in, a federally recognized tribe, the Indian Child Welfare Act of 1978 (ICWA) applies and changes the rules significantly.4eCFR. 25 CFR Part 23 – Indian Child Welfare Act ICWA sets a mandatory placement preference for foster care: first, the child’s extended family; then a foster home approved by the child’s tribe; then an Indian foster home; then a tribal institution.5Office of the Law Revision Counsel. 25 USC 1915 – Placement of Indian Children As a grandparent, you’re at the top. The tribe can set a different order by resolution and can intervene in the state court case at any time.
ICWA also raises the evidentiary bar. Before a court can order foster care over a parent’s objection, it must find, by clear and convincing evidence including qualified expert testimony, that keeping the child with the parent would likely cause serious emotional or physical harm.6Office of the Law Revision Counsel. 25 USC 1912 – Pending Court Proceedings The agency must also show that “active efforts” were made to prevent the family’s breakup and failed.
Financial Help Once You Have the Child
Suddenly raising a grandchild is expensive. Several programs can help, and eligibility depends on how your custody is structured.
Foster Care Maintenance Payments
If you’re a licensed kinship foster parent through CPS, you’re eligible for the same foster care maintenance payments any foster family receives. These cover food, clothing, shelter, and daily supervision. Amounts vary by state and the child’s age, but this is the most consistent support available during an active CPS case.
Kinship Guardianship Assistance Program
The federal Kinship Guardianship Assistance Program (KinGAP) pays monthly benefits to relatives who take legal guardianship after serving as the child’s foster parent. To qualify, the child must have been removed by court order, must have been eligible for foster care maintenance payments, and must have lived in your home as a licensed or approved foster parent for at least six consecutive months.7Child Welfare Policy Manual. Guardianship Assistance Program Eligibility The agency must also find that reunification and adoption aren’t appropriate and that the child has a strong attachment to you. KinGAP payments cannot exceed what the foster care maintenance payment would have been, and the program covers up to $2,000 in nonrecurring legal costs for obtaining guardianship.8The Administration for Children and Families. Kinship Care
TANF, Medicaid, and Social Security
Temporary Assistance for Needy Families (TANF) offers “child-only” grants in many states, where the payment is based on the child’s needs regardless of the grandparent’s income. Rules and amounts vary by state. Grandchildren in your legal custody may also qualify for Medicaid, the Children’s Health Insurance Program (CHIP), and free or reduced school meals. If the child’s parent is deceased or disabled, the child may qualify for Social Security survivor or dependent benefits on the parent’s work record.9Social Security Administration. Code of Federal Regulations 404.358 – Who Is the Insureds Grandchild or Stepgrandchild
Kinship Navigator Programs
Federal funding supports state Kinship Navigator programs that help relative caregivers locate healthcare, legal help, and financial aid. Grandparents routinely miss benefits they qualify for. Contacting your state’s Kinship Navigator early is one of the highest-value steps you can take.
From Temporary Custody to Permanent
The Adoption and Safe Families Act (ASFA) requires states to file a petition to terminate parental rights when a child has spent 15 of the most recent 22 months in foster care, unless the child is living with a relative or the state documents a compelling reason not to proceed.10Child Welfare Information Gateway. Adoption and Safe Families Act of 1997 – P.L. 105-89 That relative exception gives grandparents breathing room, but it can also let the case sit in limbo longer than anyone wants.
Termination of parental rights requires the state to prove its case by clear and convincing evidence. Common grounds include severe or chronic abuse, long-term neglect, abandonment (often defined as no contact for six months or more), substance abuse that prevents the parent from caring for the child, or serious mental illness. After termination, the court must separately find that ending the parental relationship serves the child’s best interests.
Once parental rights are terminated, adoption becomes possible, and grandparents providing kinship care are typically first in line. Adoption is the most permanent status: it severs the former parents’ rights and makes you the child’s legal parent. If you’ve been receiving KinGAP payments, you may transition to federal adoption assistance instead, which can continue until the child turns 18 or, in some states, 21.