The Legal Maze of Kinship Care

The prevalence of grandparents and other relatives as primary child caregivers has skyrocketed nationwide since 1983. This emergence of kinship care can be attributed to a number of complex and interwoven factors, including welfare reform, the rising rates of incarceration for women, the effect of "three strikes" legislation, the HIV/AIDS epidemic, teen pregnancy, poverty, racism, homelessness, unemployment, increased substance abuse and limited treatment facilities for drug and alcohol dependent parents, and further marginalization of low-income communities. Innocent children have been essentially orphaned or abandoned by parents unable to fulfill their caretaking responsibilities because of these grave and deep-rooted societal issues. Grandparents and other relatives have stepped in to stabilize living situations for their grandchildren, provide them with stable, caring homes, and prevent the trauma of multiple out-of-family placements.

The growing number of grandparents who are parenting a second time is quite striking. In 1995, almost 2.5 million grandparents were caring for their grandchildren, and about one-third (911,000) of these were caring for children in homes where neither parent was present (Flint & Perez-Porter, 1997). The total number of children living in households maintained by grandparents or other relative caregivers increased from approximately 2.2 million in 1970 to roughly 3.4 million in 1993 and an estimated 4 million in 1997 (Harden et al., 1997; Minkler, 1997).

Grandparent and relative caregiver headed households encounter multiple and complex issues, including lapsed or skipped generation parenting, traumatic separation of children from birth parents, economic strains on limited incomes, and parental recovery issues (including co-dependency). Grandparents must re-define their relationship to their grandchildren, especially in the area of discipline, and adjust or readjust their households financially and physically for these children. Moreover, kin caregivers must overcome personal challenges and stresses, such as declining health, lack of social services support and affordable and adequate housing, and limited access to child care. Both the child and grandparent must also struggle with their relationships to the absent parent, especially when the relationship between the grandparent and grandchild becomes a legal custodial one.

Grandparent and relative caregivers and those who work with them need to understand the myriad of legal issues that these families confront. Many focus on custody arrangements and access to public benefits. Peripheral legal issues affecting kinship families often include, but are not limited to, adequate housing concerns, health care coverage, educational services for disabled children and domestic violence problems. This article provides an overview of the legal custody options available to grandparents and other relative caregivers.

Informal Caregiving

In many families, the grandparent steps in to care for the child with no concern or interest in obtaining legal custody of the minor. This is generally an informal relationship acceptable to both the caregiver and the parent(s). Children may live with grandparents due to a variety of circumstances. In some instances, the child may be taken in suddenly because of the parent's incarceration or illness. In other circumstances, the parent will ask the grandparent or relative to take care of the child for a while until s/he can provide for the child. Often times, the grandparent gradually becomes the full-time, primary caregiver; however, such relatives are often averse to involving strangers in their personal, family affairs and, thus, will not venture into the court system. Frequently, they do not want to disturb the status quo because they feel the child is safe while informally residing with them.

As long as the caregiver and the parent are able to communicate and agree on where the child should reside, this informal arrangement can work very well. It also alleviates any violent or disturbing reaction from the parent, which may be expressed when a court action is filed. Clearly, legal proceedings can create family strife and provoke negative reactions from otherwise complacent/agreeable parents (Crumbley & Little, 1997).

The disadvantage of the informal arrangement is that a parent can move the child at any time s/he desires. This results in the child being frequently bounced from place to place and unable to ground him/herself in a stable home and school environment. Furthermore, without a court action to transfer legal custody, the parents retain full parental rights. Consequently, a legal vacuum looms for the child without a parental decision-maker (Flint & Perez-Porter, 1997). The grandparent may have difficulty enrolling the child in school, obtaining medical treatment or dealing with public benefits issues.

Several legal tools exist that can assist the informal caregiver with decision making for the child. The first is a Power of Attorney, which is a written instrument in which one person appoints another person to act on her behalf. A parent could therefore give power of attorney to another adult/caregiver to enroll her child in school or consent to emergency medical care if she is unavailable. This act does not legally transfer custody or terminate parental rights. However, it does grant the caregiver authority to make certain decisions for the child. The power of attorney can be a very effective tool if the parent consents because it achieves immediate goals, but can be revoked at any time if the parent deems it necessary (de Toledo & Brown, 1995).

A second tool is the caregiver authorization form. In 1994, two jurisdictions enacted legislation that created authorizations for informal caregivers to access medical care and/or enroll a child in school. In California, the Caregiver's Authorization Affidavit (Cal. Educ. Code ?48204; Cal. Family Code ?6550), allows a caregiver who is 18 years of age or older to enroll a minor into school and consent to school-related medical care, such as immunizations and physical exams. Relative caregivers also have the right to consent to medical and dental care through use of this form, but they must attempt to contact the parent or guardian prior to its use. While completing and signing this one-page affidavit can secure important services quickly for the minor child, it does not allow the caregiver access to vital school and medical records.

In Washington, D.C., the "Authorization for Medical Consent for Children in the Care of Adults Other than Parents Act of 1993" was enacted to address the need of kin caregivers who must access medical care for the children in their care (D.C. Code ?16-4701). By signing this authorization form, parents and legal guardians can allow another person (presumably the caregiver) to consent to the immunization, medical, surgical, dental, developmental screening and/or mental health examination or treatment of a child (Ginchild & Perez-Porter, 1996).

Legal Guardianship

When a caregiver decides to obtain custody of the minor child, guardianship generally is sought. Guardianship is a formal legal arrangement that transfers custody of the child from the parent to another person by court order. The appointed guardian obtains legal and physical custody of the minor and is responsible for the care, custody, control and education of the child. Although a guardianship in effect temporarily suspends parental authority, the parents may be entitled to visitation and continue to be financially responsible for the child (Flint & Perez-Porter, 1997). Parents sometimes consent to the guardianship when they understand that it is can always be modified and does not terminate their parental rights.

The legal standards for obtaining an uncontested guardianship are whether it is: (1) necessary and convenient, and (2) in the best interests of the child. However, if the parent contests, the guardianship standard is raised to proof of detriment. A showing must be made that parental custody would be detrimental to the child, and that an award to the "nonparent" is in the child's best interest and is necessary to avert harm to the child.

The main advantages of the guardianship are the grant of decision-making authority and the stability it provides for the caregiver and the child. Once a guardian is appointed, no one can legally take the child without the guardian's consent. The guardian can determine the child's residence within the state, obtain proper medical care, enroll the child in school and access school records, discipline the child, and provide the basic necessities (food, clothing, shelter). Unless there is a court-ordered visitation schedule, the caregiver can use her/his judgment and discretion to decide when and how visits occur between the parent and child (de Toledo & Brown, 1995). However, the guardian cannot deny visitation arbitrarily.

The grave disadvantages of guardianship are the risks involved. First, the guardianship action may antagonize and provoke parents who were otherwise uninterested in removing the child from the grandparent's care. Second, the possibility of the parents contesting is a great risk because the grandparent may have to enter into litigation against the parent if s/he wants to pursue legal guardianship. If this is the case, the grandparent must prove that the parent is unfit and detrimental to the child. To reach this burden of proof, the caregiver will have to disclose (with corroborating evidence) every unfavorable fact about the parent. This may include homelessness, unemployment, and any potentially harmful actions of the parent, e.g., drug abuse, physical or sexual abuse. Obviously, this often creates a very adversarial and emotionally stressful situation between the caregiver and the parent. The guardianship proceeding may also be stressful for the child, especially if the matter is contested and the child feels she or he is being forced to choose between the grandparent and the parent. Finally, the parent may retaliate against the grandparent and prevent her from seeing or visiting with the child ever again.

It also is important to note that guardianship is never really permanent, terminating when the child turns 18, marries or is emancipated. In addition, the parents may file a petition to terminate the guardianship at any time on the basis that it is in the child's best interest for the child to be returned to them.

Standby Guardianship

Standby guardianship is another option available to relative caregivers in some states. Originally created in response to the HIV/AIDS epidemic, this mechanism allows terminally ill parents to nominate someone to care for their children (Ginchild & Perez-Porter, 1996). Generally reserved for the terminally and progressively ill, standby guardianship goes into effect when the parent becomes physically or mentally incapacitated and cannot provide care and control over the minor.

A standby guardianship allows the family, and especially the parent, to prepare before incapacity sets in. The parent petitions for appointment of the standby guardian, and the petition must include a statement from the doctor stating that the parent is terminally ill. When death, debilitation or incapacity occurs, custody automatically transfers to the nominated adult. The nominee must then petition the court for confirmation of the nomination.

A closer look at the Connecticut (Conn. Gen. Stat. Ann. ?45(a)-624 et seq.) and Illinois (Ill. Ann. Stat. Ch. 755, para. 5/11-5.3) statutes indicate that standby guardianships might also be available to incarcerated persons in these states (Ginchild & Perez-Porter, 1996). In Illinois, the "guardianship of limited duration" allows parents to appoint guardians for their children with a predetermined termination date. This allows the parent to make arrangements for the child during her/his incarceration and resume custody of the child once released (de Toledo, 1995).

Foster Care

A grandparent or relative caregiver can become the foster care placement for a child when the child welfare system determines that the child has been abused, neglected or abandoned by his or her parents. In these situations, the child welfare agency may remove the child from the home and file a petition with court (in most states the juvenile court). Upon hearing the petition and considering the findings, the judge will make a ruling that the child is a dependent of the court. At that time, the state has legal custody of the minor, and the child welfare agency, acting for the state, searches for a permanent placement for the child. The person with whom the child is placed has physical custody of the minor, but is closely supervised and monitored by the child welfare agency. Children who are removed from their homes can be placed in foster care with either relatives or with strangers. However, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 requires states to consider giving preference to an adult relative over a non-relative caregiver when determining the placement of the child (42 U.S.C. 671(a)).

In trying to find a placement for the child, therefore, states should look first for a grandparent or other relative to care for the child. Relatives seeking the foster care placement must nevertheless be proactive when a child is removed from the home and get involved early in the process. They should explore every possible avenue to participate in the dependency proceedings, so the worker, the attorneys and the court know the relatives would like the child placed in their care.

Relatives should (and "must" in some states, e.g., New York) be informed by the social worker that they can choose between taking the children informally with assistance from the Temporary Assistance for Needy Families (TANF) program or being a foster parent and receiving foster care funds for care of the grandchild (Flint & Perez-Porter, 1997). Foster care payments, which far exceed the TANF grants, are available for these children through the federal foster care program if the children meet the eligibility criteria, or through a state foster care program (de Toledo, 1995; Ginchild, 1995). Title IV-E of the Social Security Act (42 U.S.C. ?672 et seq.) sets forth the eligibility requirements for federal foster care funds as follows: "(1) Children must be under 18 or 19 years old if still in school; (2) they must have been removed from their homes as a result of a court order or a voluntary placement agreement; (3) the state must be responsible for the child's care; (4) the child must be living with a specified relative within six months before court proceedings began; and (5) the child must have been receiving or was eligible to receive TANF in or for the month prior to the initiation of court proceedings" (Ginchild-Abeje & Perez-Porter, 1997). Children who do not meet these criteria may be eligible for foster care benefits funded entirely by the state. States, however, have the option to deny these benefits to children in relative placement (Ginchild, 1995).

While the dollar amount of the foster care payment is significantly more than the TANF grant, there are many rules and regulations connected with it, along with the lack of legal authority over the child. Moreover, grandparents, as kinship foster parents, have certain enumerated duties and responsibilities that they do not have in other legal custodial relationships. The home of the kinship foster parent is supervised, and the caregiver cannot make major decisions for the child without the approval of the agency that has legal custody of the child (i.e., the agency acting for the state).

Further, not all grandparents are entitled to kinship foster care payments. Grandparents who have obtained guardianship, adopted their grandchildren, or are caring for the children informally are usually not eligible for kinship foster care payments. This is the great disparity and inequity in the public benefits system. For those grandparents who take on the responsibility of their grandchildren before parental care reaches the level of abuse and neglect, there is little to no financial or social services support available for them, yet the children in their care have the same needs as the children in foster care.

Foster care, whether with a relative or a stranger, is seen only as a temporary solution. The Department of Social Services is focused on permanency for children, which means the child welfare agency must make efforts to provide a permanent, stable home for children. This ultimately means adoption or reunification with the biological parents. Grandparents, who are the kinship foster parents, must be prepared for the inevitable question of whether they are going to adopt the grandchildren if the parental rights are terminated or whether they are going to allow an adoptive family to take the children (Phillips & Bloom, 1998).

In 1997, the California legislature passed the Kinship Adoption Bill, making kinship adoption a permanency planning option for children in dependency. Through kinship adoption, the grandparent or relative becomes the adoptive parent for the child; however, the child is not eternally separated from a relationship with the biological parents. (Cal. Family Code ?8714.5) Through the kinship agreement, the adopting parents and biological parents can enter into an agreement whereby provisions for visitation, contact, and sharing of information about the child can be set forth and will be a part of the final adoption decree. (Cal. Family Code ?8714.7)

Adoption

Although adoption is the most secure custody arrangement available to "nonparents", it is not often the option pursued by grandparent and relative caregivers. Adoption terminates the rights, duties and responsibilities of the biological parents. Even given the Kinship Adoption statutes noted above, it permanently dissolves all legal ties between the child and parent and creates a new parent-child relationship. Grandparents who adopt their grandchildren become the children's legal parents and can make all decisions about the children's education, medical care, religious upbringing, and so forth. Through adoption, the child can be listed as a dependent on the grandparent's insurance, and the child may be entitled to Social Security benefits when the grandparent retires or becomes disabled. Adopted grandchildren also inherit directly from their grandparents.

For these reasons, adoption brings up issues of family unity and divided loyalties. For many grandparents, the child is clearly their grandchild, and they do not want to assume legally the role of parent. Adoption also signifies that the grandparent has no hope left for the parent, and many grandparents prefer to retain that glimmer of hope that the parent will become responsible for the child. Furthermore, the parental rights must be terminated before an adoption can proceed. If these rights were not terminated earlier in a dependency matter or if the parents do not consent, it can be an extremely painful battle to litigate the termination of these rights.

Finally, adoption is very costly to the family, not only with court costs, but daily living expenses. Once the adoption is ordered, the kin caregivers become financially responsible for the children's support. Adoption impacts eligibility for public benefits because the grandparents' income (often a pension or Social Security) will generally now be counted. Under TANF, the adoptive grandparent must apply for benefits for self and child as a household unit; the grandparent cannot apply for child-only benefits now that she has assumed the role of the natural parent (Ginchild-Abeje & Perez-Porter, 1997). In cases where a grandchild had been in foster care, adoption subsidies through the Adoption Assistance Program may be available to assist a child with special needs since the foster care payments cease upon the final order of adoption.

Conclusion

In conclusion, the legal custody options available to grandparent and relative caregivers present significant issues to weigh and assess. Even though each option has many benefits, each also presents many consequences that will greatly impact the family. All caregivers contemplating custody are faced with the burden of making these difficult decisions for their families, especially for the children in their care. The number of children in kinship care will continue to rise in our society, and grandparents will continue to be the source of family stability for children in the future. The legal issues impacting the kin care families will constantly need to be explored, and hopefully new laws will be enacted to support our society's senior population in their expanding child caregiving role.

This article was written from the perspective of California law, which is where the author practices as an attorney. Other state laws are mentioned for illustrative purposes only. Before advising clients, an attorney and the laws of your state should be consulted for more details on this subject.

Special thanks to Richard Cowan, Executive Director, and Kathy Dees, Managing/Supervising Attorney, at Legal Assistance for Seniors, for their contributions to this article.

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