For child welfare-involved families, kinship caregivers play a vital role in supporting efforts toward reunification, but when that is not possible, kin can serve as a permanent resource for the child. 

Although families are their own best expert, they need information to make decisions that are best for them​. Many kin do not have an attorney to help them understand the different permanency options, including the associated benefits, rights, and responsibilities. Importantly, each legal relationship option involves potential financial ramifications to consider including possible subsidies; impact on existing subsidy payments; effects on military or disability benefits; implications on child support payments; coverage through private health insurance; tax credits; ability to inherit; and affordable housing. 

In some child welfare-involved cases, kin caregivers are pressured to provide permanency for the child upon a threat of removal​ from the kin caregiver’s home. This pressure may happen after the child has been in foster care for a significant period of time or at the onset of the case. Pressure to provide a permanent home without a thorough discussion and careful considerations may result in the loss of sufficient future support or assistance. See more about Kinship Diversion Practices in the placement section. However, we must keep in mind that permanency with kin may change the family dynamics and cause conflicting feelings for all. Some kin may not want to change the nature of their relationship with the child or cause problems with the parents. When possible, all parties, with assistance from their attorneys, should take an active role in planning for the future of the child. This requires the inclusion and support of kin caregivers in the decision-making process, a thorough assessment of the kin caregiver’s commitment to providing a permanent home for the child, and considerations of the impact of the permanency decision on the entire family.

All legal professionals should ask questions about the current relationship between the kin caregiver and the parents and the willingness and ability of the parent and kin caregiver to respect each other’s roles and bond with the child.  

Parents’ attorneys should work with their clients to understand the need for permanency for the child, the likelihood of reunification, and the parents’ options to stay connected to the child post-permanency. They should help determine what services and support the parents would need for reunification and discuss any necessary steps to modify the permanency order.   

Children's attorneys should make sure they have a thorough understanding of the rights and privileges (both legal and intangible) which result from the various permanency options when counseling their clients. Children’s attorneys should discuss permanency with their client, as age appropriate. It is important to remember that children are often hesitant to consider permanency due to concerns about their relationship with their parents or fear of the unknown. If the child is hesitant, it is best to explore the reasons for these feelings. Children should be encouraged to express their preference to the court directly or through their attorneys. Adoptions require consent of older children, and subsidized guardianship requires that children be consulted; in order to make the best decisions for children, the court needs to understand the child’s point of view.  

For older youth, achieving relational permanence in addition to legal permanence is also important.  Relational permanency is defined by a child’s lasting, supportive relationships that extend beyond the child’s time in foster care and helps a child feel loved, connected, and supported. As youth age out of the system, their need to stay connected to supportive adults is critical for their success. For more information on the needs of older youth, see the Identification, Notice, and Engagement section. 

Judicial officers should ask questions to determine if kin understand the impact of the chosen permanency option; whether they have what they need to make an informed decision; if they have met with a lawyer or advocate to review their options; if they felt pressured to pursue kinship custody, guardianship, or adoption; and whether they understand and agree to all terms and conditions of the permanency order.   

Prior to granting a legal relationship to a kin caregiver, the judge should ask if the kin caregiver has what they need to safely care for the child without agency involvement and if they were told about post-permanency support and services.  

The court should consider the following areas when determining if continued contact between the parents and the child is in the child’s best interest, post-permanency:  

1. Length of time child removed from parents' care and circumstances relating to removal; 

2. Interaction and relationship of child with kin caregiver and parents with kin caregiver; 

3. Willingness and ability of parents and other relatives to respect and appreciate the new legal relationship formed between the child and adoptive parent or legal custodian/ guardian; and 

4. Willingness and ability of the prospective adoptive parent or legal custodian/guardian to respect and appreciate the bond between the child and the parents, siblings, and other relatives. 

Judges should craft kinship permanency orders that include details about parental visitation and contact requirements, including frequency; the need (if any) for supervision; duration; location; who is responsible for facilitating the contact; and the process for modification, enforcement, or discontinuance of the agreement. Additionally, “change in circumstances” language should be included in all orders, which allows for modification of the contact order by the kin caregiver, if in the best interests of the child.

Adoption is considered the most permanent of the options, as an adoption order is not often overturned and parental rights are not easily reinstated once terminated. One of the most critical differences between adoption and other options is that it severs all of the birth parents’ rights and responsibilities. Once the child is adopted, the kin caregiver becomes the parent in the eyes of the law. This may be a preferred option if reunification is not possible and the caregiver wants long-term security for the child. Additionally, if the kin caregiver adopts a child from the child welfare system, they may be eligible for an adoption subsidy to help care for the child until age 18 (or up to 21 in some states). Other benefits of adoption include the right of inheritance, an adoption tax credit, access to private health insurance or Medicaid, and next-of-kin status.  

Attorneys should be aware of any related cultural norms which make terminating parental rights inappropriate, as well as the parent, children, and kin caregiver’s beliefs as to whether a termination of the parent’s rights is best for their family.  In these cases, attorneys should see whether Tribal Customary Adoption is an option in their state or whether legal guardianship (see below) could meet both the child's need for permanency and the family's need to maintain parental rights. 

If adoption is determined to be the most appropriate permanency option, an open adoption should be explored. More than half the states have some form of legally enforceable open adoption law. For a current list of open adoption laws, visit the National Council for Adoption’s Post-Adoption Contact Agreement State Review. Agency, parent, and children’s attorneys should carefully explore this option and work with their clients to concur with the agreement’s terms prior to finalizing the adoption. It is important for all parties to understand that if a party breaches the agreement’s terms, courts can order remedies to enforce it, but invalidation of the adoption is never a possible remedy. 

Historically, guardianship was used as a way for a probate court to grant legal authority over a child upon the death of a parent, and sometimes as provided by a will. Over time, states have broadened their use of this term to grant legal authority to a third party to make decisions and access services for the child.  

Some states have also created a variety of guardianships to address specific needs, including:  

1. Standby Guardianships allow parents to designate a standby guardian in the event of their incapacity or debilitation. Upon a named triggering event, the person designated as the standby guardian files a petition in court to request the authority to consent to and access services on behalf of the child. This is often used by parents who anticipate a possible “incapacitation” due to illness or a long military deployment.    

2. Temporary Guardianships are formed when a guardian is needed to care for a child in a short-term situation – for example, when the parent is in prison, away from home for work, or deployed oversees in the military for a short tour. States vary in the permissible time length and the powers granted to a temporary guardian.   

3. Limited Guardianships are “limited” by the powers the court grants the guardian. These are used to give only certain enumerated powers to a guardian – for example, the power to assist a parent with education decision-making or to approve medical care. The parent maintains most parental decision-making rights.  

Although the child’s consent is not required, if a guardian is chosen for the child, the child’s attorney plays a critical role in informing the court about the child’s wishes and relationship with the proposed guardian. In some states, the child may petition for their choice of guardian.

Depending on the state’s laws and the court order, parents may retain some rights, responsibilities, and financial obligations. As a parent’s attorney, it is important to explain that guardianship does not terminate all of your client’s rights and to help determine which rights your client wishes to retain. Parents’ attorneys should also review the various factors that may be considered if your client wants to petition for the guardianship to be terminated.  

Ultimately, all legal professionals have a role to play in making sure that the guardian and parents understand any limitations on the guardianship granted, including any rights retained by the parents and the possibility of modifications in the future. All parties and their attorneys should carefully review the orders and make sure they contain terms that are agreeable to all parties.   

The federal government recognized the need for additional supported kinship permanency options within the child welfare system and created the Kinship Guardianship Assistance Program (GAP) under the Fostering Connections Act.  This law provides all title IV-E agencies with the option to use federal funds to enable children to exit foster care into permanent kinship homes (for more information on the Fostering Connections Act, see the background laws and resources section).  

This permanency option provides the kinship guardian caregiver with a subsidy if the case meets certain state and federal eligibility criteria. Kinship guardians receive a monthly subsidy check for the care of the child and are reimbursed up to $2,000 for the costs of obtaining legal guardianship (e.g., legal fees, court filing fees, and travel expenses. The subsidy payments usually end when the guardianship terminates or when the child turns 18 (or age 19 to 21, depending on the state).  

As legal professionals, it is important to be familiar with your state’s GAP program and eligibility requirements, including how “relative” is defined for purposes of your program. States with a broad definition include those related to the child as well as those who have a “significant relationship” with the child or family, thereby allowing more kinship caregivers to be eligible for the program. Additionally, federally subsidized GAP and most state-funded programs require the kinship caregiver to be a licensed foster parent for the child for six consecutive months prior to entering into the GAP arrangement. As discussed in the placement section, not all kin caregivers wish to become licensed or can qualify; subsidized guardianship is not the path to permanency for these kin and other options should be explored.  

Prior to granting a guardianship order, judicial officers must determine the appropriateness and permanence of the placement and whether it is in the best interest of the child. As part of this determination, the court should consider whether the agency has shown why reunification and adoption are no longer appropriate permanency plans and that the relative caregiver demonstrates a strong commitment to raising the child permanently. Judges should also make sure that the guardianship assistance agreement is in place and that all parties agree with the terms before awarding guardianship. 

To be eligible for federally funded GAP, the agency must document that they have discussed this permanency plan with the parents and the caregivers, ensure that the child has a strong attachment to the prospective relative caregiver, and consult with children over the age of 14. Siblings of eligible children are also eligible if they are placed in the same home at any time. In order to satisfy these criteria, agency, parent, and children’s attorneys should discuss the impact of this permanency outcome with their clients and help assess the commitment of the proposed guardian prior to the court hearing. Additionally, parent attorneys should review what parental rights and responsibilities, including the right to consent to adoption, remain with their client, as well as any obligation to pay child support. Finally, parent and children’s attorneys should make sure the court order includes a visitation and contact schedule, unless the court determines that contact is not in the child’s best interest.  

GAP provides an important permanency option for a kinship caregiver who wants to provide permanency for the child without terminating the parents’ rights. It allows existing family relationships to continue and parents to remain involved in their child’s life. Many kin are reluctant to change the legal nature of their relationship with the child as well as the legal relationship of the parents. GAP is an excellent option for many kin who do not want to raise children in foster care but want to be responsive to their cultural belief that it is their duty to step in to care for children when parents are not able to do so. 

Legal custody is similar to guardianship but may be heard in a different court. Though the terms ‘guardianship’ and ‘custody’ are often used interchangeably, these terms are generally distinguished in state law. Few states have specific third-party custody laws that address legal custody to kin. Some states do, however, have de facto custody laws which allow a relative who has been raising a child for a significant period of time to more easily obtain custody. A “de facto custodian” is typically defined as the primary caregiver and financial support of a child who has resided with that person for a period of time, usually at least six months to one year, depending on the state’s laws. If the judge finds that the person is a de facto custodian, they have the same standing as a parent in the legal custody dispute. Custody is then determined based on the best interests of the child.  As stated above it is important to review the financial supports available for each permanency option outlined in this section. Legal custodians do not typically qualify for the same level of financial support as provided by adoption or guardianship subsidies.  

In some states, relative caregivers may use a power of attorney (POA) to allow them to access medical treatment and educational services on behalf of the children without going to court to obtain a formal legal relationship with the child. Although some states have specific power of attorney (POA) laws for minors, a general POA can also be used to allow a parent to grant kin the legal authority to act on a child’s behalf in financial, legal, or medical matters. Under power of attorney laws, parents complete a form or handwritten document that states what type of authority they are giving the caregiver. This is useful for various situations, such as travel or incapacity, and can be general or limited in scope and duration.  

Additionally, some states have educational or medical consent laws, which grant relatives who can show that they are raising children to access educational and medical services.  These laws differ in various ways, including how long the consent authority lasts and what types of treatment or services are covered.  

For both powers of attorney and consent documents, it is important for parents and kin caregivers to understand that those tools can easily be revoked by the parents at any time and therefore are only a short-term solution to allow kin to access services for the child. Additionally, kin caregivers who use these legal vehicles to care for children do not usually qualify for any financial support or benefits.