Because children are usually placed with relatives before the relatives are licensed, we will begin by looking at laws concerning placement.
Relative Preference of Placement
Since states must consider giving preference to adult relatives to receive federal funding, it is presumptive that states would provide straightforward language in their statutes regarding the placement of children with relatives. However, a comprehensive state statutory review reveals that the language is often difficult to find, varies in its content, and occasionally is not even in the law. Forty-one states and the District of Columbia have provisions in their statutes providing that relatives be given preference when placing children. Nine states -- Connecticut, Hawaii, Kansas, Nebraska, North Dakota, Ohio, Vermont, West Virginia, and Wyoming -- do not have any statutory language, but probably, given federal law, provide preferences to relatives in policy and practice.
The placement language in these state laws differs widely. The continuum goes from relatives “must be considered,” to “shall promote” placement with relatives, to specifically providing an order of placement preference that lists relatives as first, and finally to very strong language such as “shall place” with relatives. Michigan is among the most clear and directive of the state statutes concerning relative placement: Upon removal, as part of a child’s initial case service plan, the supervising agency shall, within 30 days, identify, locate and consult with relatives to determine placement with a fit and appropriate relative who would meet the child’s developmental, emotional and physical needs... 
Under these placement provisions, both blood and adoptive relatives are typically considered for placement. Indiana, for instance, instructs the court to specifically consider “placing the child with a suitable and willing blood or adoptive relative caretaker, including a grandparent, an aunt, an uncle, or an adult sibling; de facto custodian; or stepparent; before considering any other out-of-home placement.”  If a state does not identify which relatives should be considered first for relative foster care, most states do define “relative” or “kin” or “relative caregiver” elsewhere in their code. Thus, potential relative caregivers should not be deterred if they are of a degree of kinship not specifically enumerated in the section relating to relative placement.
In many states that have laws regarding preferences, the language appears in several different sections of the code, making it difficult for grandparents and other relatives conducting their own research. In some states, a stated preference for relative care is buried deep within complicated statutory language.
Eligibility for Placement
States are not automatically required to place a child with a relative. The state may determine that a relative’s home is unsuitable or a relative may be unwilling to care for a child despite being declared fit. California’s policy is unique in that it details over a dozen factors—beyond best interest of the child and the wishes of the parents and relatives—that might impact a state’s decision to place a child with a relative. For example, caseworkers and courts should consider: placement of siblings and half-siblings in the same home; the good moral character of the relative and any other adult living in the home; the nature and duration of the relationship between the child and the relative; and the ability of the relative to protect a child from his or her parents, facilitate visitation with the child’s other relatives, and provide legal permanence for the child if reunification plans ultimately fail.  Such elaborate direction and detail may help decision-makers make the best possible placement determinations for an already-vulnerable child.
Procedure for Ineligible Relatives
Only 15 states  provide any procedural protections in their statutes for relatives who want children placed with them but are denied that opportunity. Of these states, protections include requiring the state to keep detailed and comprehensive documentation of any decisions regarding placement; well communicated decisions denying placement; and occasionally allowing relatives to appeal unfavorable decisions.
Licensing Foster Home Requirements
Now we turn our attention to licensing standards. Our research turned up some key problematic foster home licensing standards, which can impact both relatives and non-relatives:
Possible bias against rural families
- 6 states have standards that may potentially cause discrimination against rural families: Arkansas, Colorado, Missouri, Nevada, Oklahoma, and Utah.
- Colorado’s regulations, as an example, require that the prospective foster parent: “live in an area that is accessible to health resources, public and private utilities, adequate and safe water supplies, sewage disposal, and fire and police protection.” 
Outside inspections and the issue of who pays for them
- 15 states require inspection by an outside agency, such as the Fire Marshal and/or the health department.
- 19 states “may” require outside inspection depending on the agency official’s discretion and the circumstances, such as whether the home uses well water.
- Only one of the states -- Nebraska -- specifies that it is the applicant who pays for the inspection, although the fire marshal “may” pay.  This leaves open the question of who pays in the other 33 states.
In addition to these problematic standards, the content of several categories of standards vary so dramatically from state to state and by virtue of that alone, raise questions about how these standards are determined and what are the best standards. Most of these requirements should be consistent for all safe and appropriate foster homes throughout the United States. For example, capacity standards vary between allowing 3 to 6 foster children in a home, and/or a total of between 4 to 8 children.
Some categories of standards may not be necesssary at all. For example, standards involving arbitrary and strict square footage requirements may have more to do with cultural biases than with safe and appropriate foster homes.
Foster Parent Requirements
Our research also turned up some key problematic licensing standards for becoming a foster parent:
Upper age limits
- In 6 states’ laws and regulations we found what could arguably be categorized as age discrimination: Arkansas, Delaware, Louisiana, Maryland, West Virginia, and Wisconsin.
- Most of these states explicitly refer to upper age limits of 65.
Education and literacy requirements
- Florida, New Hampshire, and Virginia’s laws and regulations specify that applicants must have the ability to communicate in English.
- Ohio and Massachusetts require either English or another language. In Ohio, applicants must be able to communicate with the “recommending agency.” In practice, this could have a limiting impact if the agencies at the county level do not have workers who speak other languages.
- Oklahoma and West Virginia require literacy without mention of language, and New Hampshire requires applicants to have high school diplomas or equivalents.
- The vast majority of states, 41, have written income requirements for applicants.
- Some states simply say applicants must have “sufficient income.” Many others explicitly state that the applicants must have sufficient income to meet the needs of the household without reliance on the foster care payment.
- Several states also prohibit home businesses without prior approval or if the business poses a risk to the health or safety of the child, and others require approval of child care plans for those parents who work outside the home. Both these standards can jeopardize meeting the income requirements, depending on how they are put into practice.
Physical examination requirements
- 27 states require that a physical exam or a medical statement be prepared by a doctor (and sometimes other health professionals are permissible) usually within 12 months of the foster care application.
- 12 of these states require physicals or medical statements for each member of the household, not just the applicant.
- Most states in their laws and regulations do not reference who pays for these physicals, although it is probable that in practice many applicants are required to pay. Given high health care costs and the fact that 16% of the population does not have health insurance , this requirement can pose a serious licensing obstacle.
Potential discrimination on the basis of disability
- There are no state laws or regulations that are overtly discriminatory on the basis of disability, although a few have language that raises concerns about how these applicants would be assessed in practice.
- For example, in Hawaii, the required medical report must certify that the “resource family suffers no illnesses or disabilities that would interfere with the resource family's capacity to care for children.”  How is “capacity to care for the children” being assessed?
Like with foster home requirements, the content of several categories of standards vary dramatically from state to state and by virtue of that alone, raise questions about how these standards are determined and what are the best standards. Most of these requirements should be consistent for all safe and appropriate foster homes throughout the United States. For example:
Abuse and neglect background checks
- Federal law requires states to conduct abuse and neglect background checks on foster parent applicants and all “adult” household members.
- Many state laws and regulations also contain requirements that go beyond the federal requirements. For example, some states – Arkansas, Kansas, and South Dakota -- require checks on household members as young as age 10, and several more – Connecticut, Illinois, Iowa, Texas, and Kentucky -- on teenagers.
- States also differ in whether they deny licenses to only those with substantiated child abuse, or whether having an indictment, open or pending case is sufficient.
Criminal history records check
- All states and the District of Columbia require that a criminal background check be conducted on foster parent applicants, which is mandated by a federal law called Adam Walsh.
- Based on our initial research, we determined that at least 21 states disqualify for crimes beyond those in federal law. Some examples include scheme to defraud, defrauding creditors, issuing a bad check, prostitution not involving children, threatening terror, and attempting or assisting suicide.
Provisional Licensure/Emergency Placement
Because children are often placed with relatives before they are licensed, there is a need for an expedited timeframe when licensing relatives. In response to that need, many states have “provisional licensing.” Provisional licenses are typically time limited and allow a relative or a non-relative to care for a child after certain basic safety checks have been completed on the home and household members. These licenses generally allow the adult to complete the licensing process during the time period of the provisional license; in the event they are unable to be licensed, the child is removed. About 35 states have these licenses, and only a couple – Arkansas and the District of Columbia -- specifically limit them to kin.
Rather than providing for “provisional licensing”, a few states – California, Connecticut, Minnesota, New Jersey, New York, Oklahoma, Rhode Island, and Utah -- call for the same type of background checks, time limitations, and applications for full licensure, but rather than “licensing” the home, albeit it provisionally, the states simply call it an emergency or temporary placement. Almost all of these states limit these placements to relatives or kin. In Connecticut, emergency placements are also open to children where the adult is a relative of a sibling. Whether the fact that the home is not “provisionally licensed” by the state affects the state’s liability for the placement is an open question.
Waiver/Variance of Licensing Requirements
After addressing the difference in timing and urgency for relatives and non-relatives, the question arises as to whether the same standards make sense for relatives as non-relatives. For example, should the prohibition against foster children of opposite genders sharing a bedroom apply to siblings? Some states address these types of differences by allowing for case by case waivers or variances. Relative Foster Care Licensing Waivers in the States: Policies and Possibilities prepared for this resource center specifically addresses waivers.
Our research found that almost half of the states have provisions allowing for some type of non-safety related waivers, and almost twenty states allow for variances from non-safety related requirements. About fifteen states have waivers for specific licensing standards, such as age requirements. In Arkansas, for example, foster parent applicants must obtain a waiver if they are 65 or over or one or both current foster home providers reach 65. 
About sixteen states have provisions that only apply to kinship caregivers, which allow for the waiver of either specific requirements or any non-safety requirement. For example, in Connecticut, they have a general waiver provision for relatives: the commissioner may grant a waiver on a case-by-case basis from any non-safety related procedure or standard, including any standard regarding separate bedrooms or room-sharing arrangements, for a child placed with a relative, if such placement is otherwise in the best interests of the child.  In Kentucky, specific exceptions to the requirement that foster parents be age 21 are allowed for relatives between ages 18 and 21 who are “able to meet the needs of the child”. 
Over ten states also have waiver and variance provisions to facilitate the placement of siblings together. Most of these provisions allow for waivers of capacity standards in order for siblings to remain together in the home. In Colorado, variances from square foot space standards are also allowed for siblings.  Michigan has a general variance provision to facilitate sibling placement: the department may grant a variance to one or more licensing rules or statutes to allow the child and one or more siblings to remain or be placed together. The department may grant the variance if it determines that such a placement would be in the child's best interests and that the variance would not jeopardize the health or safety of a child. 
Relative-Specific Licensing Requirements
The Adoption and Safe Families Act prohibits a two-tiered system of licensing, one for relatives and another for non-relatives, according to the Final Rule implementing ASFA. In the comment and response section of this Final Rule, the Children’s Bureau of HHS explicitly states: “relatives must meet the same licensing/approval standards as non-relative foster family homes.”  Although the language of ASFA itself is not as clear, this is the federal guidance on the subject. Research conducted by the Urban Institute found that partially as a result of this rule, 27 states changed their licensing policies. Of these, 18 states implemented stricter licensing standards for relatives than they had previously.  While we were conducting our research for this project, we saw many state codes of law that had entire sections devoted to licensing of kin, which had been repealed in their entirety. Consequently, our research did not turn up much in the way of separate licensing standards for relatives, although many states have language treating the licensing of relatives differently.
Louisiana is one of the only states with what they call separate minimum standards for relatives in its law. This 1997 Louisiana law, which was amended in 2000, allowed the Office of Children and Family Services to establish a Kinship Foster Care Program with different licensing standards: the “office of children and family services shall establish, in accordance with the provisions of this Section, eligibility standards for becoming a kinship foster parent including the following…”  Although the law is still in effect, the Office of Children and Family Services does not appear to have such a program. There is nothing in Louisiana’s regulations about such a program and the department’s website explicitly states that relatives must meet the same standards.
Several states do however have language facilitating the licensing of relatives:
- In Hawaii, the department must provide a child's relative with an application to be the child's resource family within fifteen days of the relative's request to provide foster placement for the child. If the application is submitted and denied, the department must provide the applicant with the specific reasons and an explanation of appeal procedures.  Furthermore, relatives are not required to complete training prior to licensing. They have one year after placement to complete training. 
- In Idaho, "[t]he department may expedite placement with a relative, issue a foster care license or grant a limited variance or waiver of a licensing standard or requirement if, in the department's judgment, the health and safety of the related child is not thereby endangered.” 
- Illinois has a separate part of the code for "APPEAL OF FOSTER FAMILY HOME LICENSE DENIALS BY RELATIVE CAREGIVERS."  We have not explored how that appeal process plays out in practice, but it is interesting to note that such a mechanism has been called for in the regulations.
- New York has procedures calling for expedited approval for relatives. According to state law, after a relative applies to become a foster parent, the court must hold a hearing to determine whether the child should be placed with the relative in foster care. If the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services, to initiate an investigation of the home of the relative within 24 hours and thereafter expedite approval or certification of the relative, if qualified, as a foster parent. Please note, however, that no child in New York “shall be placed with a relative prior to final approval or certification of such relative as a foster parent.” 
We found only one state that requires relatives to meet additional licensing requirements beyond those required of non-relatives. In Colorado, relatives must have:
the ability to provide a permanent home through adoption, guardianship or permanent custody, including the ability to meet the individualized needs of the specified child(ren), assessment of the relationship with birth parents and extended family members as they impact capacity of the applicants to care for the child(ren), and the ability to set boundaries with birth parents to maintain safety for the child(ren) in care. 
More than two-thirds of the states and the District of Columbia say nothing in the statutes about how relatives must be paid. Of those states that do, most specify that for relatives who meet the same licensing requirements as non-relatives, they are entitled to the full foster care rate. These statutes are consistent with federal case law in Youakim v. Miller.  Pursuant to this case, a relative who is a licensed foster parent for a child who is Title IV-E eligible must receive the same foster care payment as non-kin foster parents.
If the children do not meet IV-E criteria, most states will use state or local funds to provide foster care payments to licensed, relative foster parents. States also may provide assistance, with their own funds, to unlicensed relative foster parents; in some states, however, these unlicensed relatives are simply referred to Temporary Assistance for Needy Families (TANF) for assistance. Like licensing requirements, most rules concerning payment can be found in state policy manuals, regulations, unwritten policies, and practice.