Kinship care, or kinship custody, refers to the children being cared for by their relatives. Some jurisdictions also include close family friends in their definition of kinship care; in these cases, the caretakers are referred to as fictive kin. Kinship care is generally established when the child’s biological parents can no longer care for them, for whatever reason. Essentially, it is a specific type of foster care.
An example of kinship care would be if a child’s biological parents become severely ill, and cannot currently care for the child as needed. The child’s close relative, such as their grandparent, would be granted kinship custody in order to care for the child until their parents can resume their parental duties.
This type of foster care differs from traditional foster care in that kinship care generally places the child with a guardian who has an established connection with the child. This is in opposition to standard foster care practices, which often places the child with unrelated caregivers or in a group home. Kinship care benefits largely consist of the fact that it is a unique opportunity for families experiencing hardship. The practice allows for the child to be properly cared for, without fully separating the child from their family.
What Rights Does the Law Give to Kinship Care Providers?
A kinship care provider, or kinship carer, is given some specific rights when they are appointed as the child’s caregiver. It is interesting to note that this concept of kinship care is relatively recent in terms of established foster care laws. Kinship care has caused a fairly considerably dramatic shift in child welfare laws.
Under most state laws, any adult that has an established kinship bond with a child may serve as their kinship carer. However, state laws can vary widely regarding the rights and responsibilities of those who have been granted caretaker status.
Generally speaking, kinship care grants the same rights to caretakers that foster parents are granted under standard foster care practices. An example of this would be how kinship foster parents are awarded and may exercise many major parental rights, such as the right to make important legal decisions on behalf of the child. These may include, but not be limited to:
- Educational decisions, such as where the child will attend school;
- Medical decisions, such as which doctor will be the child’s primary physician; and
- Religious decisions, such as whether the child will be made to attend weekly religious services.
In terms of benefits that kinship foster parents may receive, adults who are granted kinship care of a child may be eligible for federal assistance. This aid is intended to help the kinship carer raise and care for the minor, as well as their financial needs. Eligibility for such aid is determined by either the Adoption Assistance and Child Welfare Act of 1980, or Title IV of the Social Security Act.
Other benefits that may be available to kinship care providers include, but may not be limited to:
- Social security funds;
- Medical assistance for the child; and/or
- Various funds provided by the “TANF,” or, Temporary Assistance for Needy Families.
Are There Different Types of Kinship Care?
There are two different types of kinship care, formal and informal. Each different type of care comes with different kinship care requirements.
Under formal kinship care, the child is placed under the legal custody of appointed kinship parents. A court will generally order formal kinship care when they have determined that it is in the child’s best interest to be separated from their biological parents. Some specific examples of circumstances would that cause a court to make such a decision include, but are not limited to:
- Child abuse;
- Child neglect;
- Child abandonment; and/or
- Specific medical circumstances.
Formal kinship care is enforced through a court order, which is issued by a family law judge. Additionally, child welfare agencies are often more involved throughout the process. An example of such an agency would be Child Protective Services. Formal kinship care is highly regulated on both the federal and state levels.
It is important to note that in some formal kinship care arrangements, a child welfare agency will retain legal custody of the child, while the kinship foster parents are awarded physical custody of the child. They will provide for the child’s full-time and day-to-day care.
Informal kinship care refers to an arrangement in which the child’s parents are the party responsible for determining that it is in the child’s best interest to live with another family member, or relative. The parents retain all legal custody rights; meaning, they are still responsible for making important legal decisions on behalf of their child. The kinship foster parents are responsible for physical custody of the child, as well as generally raising the child.
A child welfare agency or social worker may be involved in the informal kinship care process. However, their role will most likely be limited to the transfer process. The agency nor the social worker will assume any sort of legal custody over the child.
How Can a Kinship Care Provider Terminate the Rights of a Natural Parent?
In short, in order to terminate the rights of a natural parent, a kinship care provider will have to file a lawsuit to terminate the rights of the natural parent in court. Although the exact name of the lawsuit differs by state, the kinship care provider will typically begin the process of terminating the rights of a natural parent by filing a suit affecting the parent-child relationship (“SAPCR”).
After filing the SAPCR, the kinship care provider will then have to serve the natural parent the lawsuit, and then demonstrate to the court that terminating their parental rights is in the best interest of the child. Once that is done, the natural parent(s) of the child will no longer have legal rights to visitation, possession, etc.
What Are Some Examples of Kinship Care Disputes? What Do I Do If I Have a Kinship Care Dispute?
It is not uncommon for disputes to arise in association with kinship care. The most common dispute generally involves the biological parent resisting the court’s order, and attempting to regain full custody rights of their child. This can pose a dangerous threat to the child, and legal intervention could be necessary in order to protect the child and all parties involved.
Another common dispute associated with kinship care would be issues involving child support payments, and other financial assistance intended to help raise the child. An example of this would be how the kinship foster parent may require more financial support from the biological parent, but the biological parent is not cooperating. Such circumstances are more likely to result from informal kinship care than formal, due to the fact that informal kinship care is not supported by a court order. As such, it is not necessarily legally enforceable.
There are few problems with kinship care itself. The issues associated with the arrangement generally result from lack of communication, or lack of legal enforceability. Kinship care tends to be more about the opportunity to improve and try again, and less about taking the child away from their biological parents forever.
If you have a kinship care dispute, it is imperative that you continue to adhere to any court orders while determining your next legal move. You should consult with a local attorney, as they will have a better idea of how best to proceed. Such matters could receive priority attention from the judge, especially if the child’s health and/or safety are in question.
Do I Need a Lawyer for Kinship Care Issues?
If you are involved in a kinship care arrangement, and are experiencing any issues, you should consult with an experienced local child custody lawyer as soon as possible. Your attorney will be aware of your state’s laws regarding kinship care, and can help you understand how those laws will affect your legal options moving forward.
Additionally, they can help you adhere to any orders and fulfill your legal responsibilities as the child’s caretaker. An attorney will also be able to represent you in court, as needed.
