The federal government addressed the importance of kinship for the first time in 1996 by encouraging states to consider giving a preference for placement with an adult relative over a non-related caregiver.¹ Since then, most states have enacted their own kinship preference laws. This issue was recently litigated and the Washington Supreme Court found that the trial court abused its discretion by failing to give meaningful preference to the child's request for placement with his willing and suitable relatives, as required by state law.² Additionally, a 2008 federal law emphasized the significance of maintaining connections with siblings when placement is necessary by requiring states to “make reasonable efforts to place siblings in the same foster, kinship, or adoptive homes, unless contrary to the safety or well-being of any of the siblings.”³

Other federal requirements that support the placement of a child with kin include the need to place the child in a safe setting that is the least restrictive (most family-like) and most appropriate setting available and in close proximity to the parents’ home, consistent with the best interest and special needs of the child.⁴ This requirement to place the child in the least restrictive placement read together with the preference for kin should clearly result in all children being placed, when possible, in a family-like, kinship home.

Another law designed to support the value of kinship relationships is the Indian Child Welfare Act (ICWA), which requires a primary placement preference for American Indian and Alaska Native children, in the absence of good cause to the contrary, with a member of the Indian child's extended family.⁵ For more information about federal laws relating to kinship placements see the background laws section.

When a child enters foster care, it is important to be aware that all interested people involved in the family’s case may have different perspectives and preferences for placement of the child based on a variety of issues. For example:   

1. Parents may be supportive of kin caring for their child rather than a stranger, but may not want certain family members involved or may have negative feelings about specific family members.  
2. Children’s preference regarding who they would like to be placed with should be a key consideration when making placement decisions. However, keep in mind that some children may find it difficult to express what they want or may be reluctant about trusting and forming relationships with kin with whom they are not as familiar.  
3. Kin caregivers may be supportive of caring for the child but may not fully support the importance of working toward reunification or, alternatively, may not be willing to be a permanent placement if needed. Additionally, kin may have a problematic history or a difficult relationship with the parent, which should not prevent placement, but should be addressed directly.  
4. Caseworkers may prefer non-kin placements which they view as more stable and possibly better able to provide the child with more advantages. This perspective may be due to bad past experiences with specific kinship placements or knowledge of and past experiences with the specific family. Additionally, it is more work for the caseworker to place with kin versus placing the child with an already licensed and approved non-kin home due to the need to check the kinship home and kin caregiver’s background.  

The job of the attorneys and the judge is often to ask specific questions to make sure that these perspectives or concerns are shared and addressed, as they may impact placement decisions. For instance, some professionals believe that kin should be willing to care for a related child out of love and therefore not require financial support to care for child. Those professionals may adopt a negative perception of a prospective kinship placement if kin ask for financial assistance to care for the child. In fact, this belief has at times led to the unintentional coercion of kin to care for the child without financial and other support from the agency.   

Finally, there are some historic biases against families – such as the idea that “the apple doesn’t fall far from the tree” – resulting in a belief that kin are incapable of caring for the child. It is best for all professionals to be aware of their own implicit biases, as well as to consider all interested parties’ perspectives and needs. 

Ultimately, judges will decide what placement is best for the child by weighing legal requirements and priorities, as well as considering preferences and perspectives. To assist in weighing these differing perspectives, judges may consider the following strategies:⁶ 

1. Engage and involve children and youth in their placement decisions.  

2. Prioritize family relationships and connections.  

3. Prioritize least-restrictive, family-like settings over group/institutional placements. 

4. Involve kin and families in treatment and discharge planning for congregate placements.  

Placement options with kin vary based on who has legal custody of the child. When the child welfare agency has legal custody of the child, this arrangement is often referred to as “inside” the foster care system or as “formal kinship care,” and the kin may or may not be a licensed foster care provider for the child.  

When a child comes to the attention of the child welfare agency, the child should be immediately placed with kin as the first and only placement whenever possible.⁷ If a child is not placed with kin, all attorneys and the judge should ask what is preventing the child from being placed with kin at each and every hearing. This inquiry includes asking the agency to provide details about their efforts to place the child with kin and what, if any, assistance can be provided to allow willing and available kin to care for the child. Both parent and children’s attorneys should vigorously advocate for the child to be placed with kin at every hearing, if the child remains in a non-kin placement.  

Additionally, when deciding on the best placement for the child, other factors must be considered, such as whether the child’s needs can be met in the least restrictive, most family-like setting possible and if reasonable efforts have been made to place the siblings together, preferably with kin. If the child has special needs, ask whether kin can be trained to meet those needs, for example by becoming a therapeutic foster home for the child. This arrangement would allow kin to receive the same supports to care for child as a non-kin therapeutic foster home.  

Although the agency is tasked with finding a placement which can best meet the needs of the child, the court has a responsibility to weigh all information and assess the appropriateness of each placement. In addition to the goal of placing the child with kin and keeping siblings together when safe, judges must also balance the federal requirements to keep the child in the same school⁸ and in close proximity to the parents.⁹  It is not always easy to find a placement that meets all of these legally required criteria; therefore, it is important for judicial officers to make sure all factors have been weighed equally when determining the best placement for a child.  

Finally, since permanency begins on day one of a case, professionals should consider the permanency of the placement when making all placement decisions. Caseworkers and attorneys for the parents and children should explore the parents’ relationship with the proposed kin caregiver and whether the kin caregiver supports the goal of reunification. It is equally important to assess the kin caregiver’s long-term commitment to the child, in the event that the child cannot be safely returned home. All professionals should be clear about expectations and permanency options from the beginning, as kin may believe this caregiving situation is temporary. Judicial officers should work to ensure that the expectations of the child, parents, kin caregivers, and agency are realistic and clearly defined by court orders.  

Some jurisdictions require kin who care for children in the custody of the child welfare agency to become licensed foster parents for the child, whereas other states do not.  State or tribal licensing requirements and processes can be very complicated and at times result in a barrier to kinship placement. Please note also that jurisdictions use different terms for approving kinship homes as foster homes, including “licensed,” “approved,” or “certified.”  

Recently, as mentioned in the Background section, the federal government has allowed title IV-E agencies to streamline their foster home licensing standards for kin to encourage more supported placements with kin. This new regulation also requires that kinship foster homes receive the same level of financial assistance as non-related foster homes. To date, many states have developed kin-specific licensing standards, thereby increasing the number of children safely cared for by people who know and love them. Visit this page to stay current on which states and tribes have federally approved kin-specific licensing standards.  

As kin usually do not have attorneys to assist them in understanding the various placement options, the agency is responsible for explaining the licensing option to kin. However, agency attorneys, as well as children’s attorneys, also have a responsibility to make sure that kin fully understand the process, as well as the benefits of becoming licensed. Written materials and charts should be available to help kin understand their options and the impact on their rights, responsibilities, and benefits of their placement decision. It is important to note that if kin are not fully licensed foster parents, this status may impact their ability to pursue certain permanency options if the child cannot safely return to their parents, such as subsidized guardianship. See the Permanency section for more information. Additionally, judges should determine if kin have been provided with sufficient information and understand their options enough to make an informed decision. If kin have questions about their options, they should be afforded the opportunity to ask them in court.  

If kin are not licensed as foster parents, judges should ask why not and make sure it is by the kin’s choice. All legal professionals should determine if there is a barrier to licensure that can be easily fixed, for example, providing the family with a new bed or a fire extinguisher. If such a barrier exists, attorneys should advocate for the court to order the agency to assist the kin caregiver in overcoming this obstacle. In some cases, agencies may waive non-safety licensing standards if it can be shown that the requirement is not necessary to provide a safe and appropriate home for the child. It is worth noting that federal law allows placements with non-citizen relatives, who may receive foster care payments if the child is eligible and they have been approved by the state. At times, background checks may pose a barrier to such approval, but it is the agency’s responsibility to work with kin to alleviate such barriers, if allowed by state law.  

Ultimately, it is the agency’s decision to approve the kin caregiver as a kinship foster parent, and the court cannot order a home to be approved. However, if the court determines that the kin caregiver is the best placement for the child, the court may order a direct placement with the kin.  

Significantly, despite the benefits of becoming a licensed kinship foster parent, some kin may not wish to pursue this path. Additionally, other kin may not be approved due to restrictive licensing standards, even with assistance from the agency. If kin are not licensed foster parents, legal professionals should determine if the kinship caregiver has all of the necessary support and services they need to safely care for the child.  

In certain circumstances, temporary placement with kin may be facilitated by the child welfare agency, through family preservation, safety plans, or prevention plans. In addition to these temporary placement options, kinship diversion is also common. Kinship diversion occurs when a child is placed with kin, facilitated by the child welfare agency, without the child formally entering the foster care system, and with or without legal custody being granted by a court to the kin caregiver.  

Kinship diversion often happens in the course of an abuse or neglect investigation when the parent decides to ask kin to care for the child in an effort to prevent foster care entry.  In this scenario, the police or child welfare agency investigator consents to allowing kin to informally take the child and then closes the child welfare case, as they consider the child to now be safe. In some situations, this may be what the families prefer and should therefore be respected.  

In other instances, in the process of removing the child, the agency contacts kin and explains that they should come get the child to prevent the child from entering child welfare custody and placement with an unknown foster parent. In this situation, the kin may feel coerced and may even be told that if they do not take the child, they will never see them again and/or will not be considered as a placement resource in the future.  

In both diversion scenarios, there is rarely agency or court oversight after placement nor any referrals for benefits or support for the family. These kin caregivers are generally also not provided with information about pursuing kinship foster care as a way to receive services and support. Additionally, since a formal legal relationship is not typically established between the kin caregiver and the child, the parents still retain all rights to legal custody of the child and may remove them from the kin at any time. 

Under kinship diversion, neither the court nor parent or children’s attorneys are involved. Therefore, it is important that agency attorneys work with their staff to examine the impact of kinship diversion and how best to support families who choose this kinship placement option. 

When the child welfare agency does not have legal custody of the child, the situation exists “outside” the foster care system or as “informal kinship care.” Informal placement with kin occurs when the parent has arranged for the child to live with kin or has otherwise left the child with kin. This approach is the more natural or traditional way families have been stepping up to care for children for centuries. These arrangements likely happen without the knowledge of the child welfare system and in many of these situations, kin have not obtained the legal authority to care for the child.  

However, in some circumstances, the kin caregiver does establish a legal relationship with the child. It is helpful to understand the various methods that exist in your jurisdiction for kin to establish such a relationship: for example, through a power of attorney, parent designation form, or court ordered temporary legal custody or guardianship. For more information on various types of kinship care and custody options, visit grandfamilies.org. Kin often seek such orders for custody or guardianship on their own, as they cannot afford an attorney to assist them. Some but not all states have legal providers who are available to help these informal kinship caregivers. For more information on legal representation for kin, see Legal Service Models for Kin Caregivers.  

If no such legal authority has been granted, however, the parent retains legal custody and may assert their right to take the child from the kin caregiver at any time. Additionally, kin may be limited in their ability to meet the medical and educational needs of the children without a court order unless their state has relevant laws in place, known as medical or educational consent laws, to allow for their authority.   

Best practice dictates that if a child is living with kin for an extended period of time, it is best to obtain a court order to allow the caregiver to access all systems, protect the child, and provide the best care possible. As a legal professional, it is helpful to understand the impact of these various care and custody options, as well as the limitations that exist when there is no formal legal relationship established between the kin caregiver and the child.  

In conclusion, when a child is in custody of the child welfare agency, judicial officers and attorneys should work as a team to ensure that the child has the best placement possible. If diligent efforts are made to find a good first placement, preferably with someone the child knows, that can be their one and only placement while in care.