Understanding Kinship Custody and Guardianship

Relative caregivers and grandparents enter into kinship relationships with varying levels of responsibilities and rights, depending on the child’s needs, the parents’ capabilities and rights, and timing. The most important elements to understand for kinship provision are the rights and responsibilities within custody and guardianship arrangements.

What is Custody?

Kinship custody, either informal or legal, means that the grandparent or relative caregiver has direct physical custody of the child — the responsibility to provide protection over the child and to provide direct care and housing. Essentially, they are the adult that the child lives with. 

Types of Custody

Legal custody is a judicial arrangement determined by the court that officially transfers custody from the biological parents to the grandfamily or relative caregiver. Parental consent is not always required for a transfer of custody If there is a threat to the child’s safety or the parents are deemed unable to care for them in another way. With legal custody, the caregiver is able to make major important decisions about the child’s life regarding things like health care and education, in addition to providing the child with a home.

Many times with kinship and grandfamilies, informal custody arrangements can be made that do not involve the court. This simply means that the parents agree to transfer custody to the grandparents or relative caregiver. The informal custody agreement is made in writing and negotiated between the parties themselves, sometimes with the help of a third party. If there is conflict, an Alternative Dispute Resolution may be needed with or without the assistance of attorneys — this is a more informal setting than in a traditional court scenario.  

Often at first a temporary custody arrangement is needed; this is granted in situations when there is an ongoing investigation into the ability of the biological parents to be the child’s guardians. A social worker from DCFS works with the grandparents or relative to determine the right care situation while the hearing is being scheduled. If there is an immediate threat to the child’s physical safety or there is the risk of the child being removed from the court’s jurisdiction, the grandparents or caregiver may be granted immediate temporary custody, which lasts for five days until a second hearing for temporary custody for a longer period of time.

Filing for custody

Grandparents, relatives, and kin may file for legal custody of a child by requesting an order from the court. It can be helpful to work with a family law facilitator or self-help center to file this paperwork. The local superior court will likely have a family court services department that can assist in mediation if needed. The custody order will be presented before the judge in a hearing where the level of custody will be determined, and custodial arrangements will be made.

What is Guardianship? 

Legal kinship guardianship is an arrangement that allows a child to have a permanent relationship and residency with a kinship caregiver, without terminating parental rights. The relative or grandfamily assumes many of the rights and responsibilities of the parent, but the child still retains their relationship to their biological parents. Because the parental rights are maintained, this isn’t like an adoption, but in practice the kinship guardian may take a similar role. Once kinship guardianship is granted to the grandparents or relative, it is transferred from the parents — however, the parents will have visitation rights and can still make major decisions on behalf of the child. Kinship guardianship rights will remain in place until the child is 18 years old, unless one or both parents are reinstated as guardian/s or the kinship guardian resigns or is removed. A grandparent or relative can become a co-guardian if the child has one living parent that provides care, and the co-guardian and parent share the same responsibilities in this situation. 

Guardianship is sometimes granted in the will of biological parents in case of their death, or happens if the parent/s incurs a disability or other constraint that makes them unable to provide this care. Kinship guardianship can happen for many reasons, including abandonment of the child or neglect.

Other Types of Guardianship

With permanent kinship guardianship, the grandparents or relative remain as the guardian until the child is 18 years old. In other instances, the guardian may be appointed for a specific period of time depending on what the court decides.

Limited guardianship is an arrangement in which the guardian has specific responsibilities that are listed within the guardianship order, and which are limited to just those stated responsibilities and rights. For example, the kinship guardian may be able to make decisions about schooling and provide a home and basic needs, but not have a say over the child’s medical care. 

Full guardianship grants the entire scope of rights. The rights and responsibilities under full guardianship include providing and making choices about the home, food and clothing, education, and health (including mental health and dental) care. The guardian has rights over school enrollment and in many states can make decisions regarding marriage, enlistment in the military, major medical treatment, and adoption of the child. 

How to Get Appointed as a Guardian

Guardianship is granted through a probate court. Within the process, DCFS will conduct an investigation into the physical, mental, social, and financial conditions of the biological parents and the grandparents and relative. If guardianship is granted to the relative or grandparents, the court will issue a written decree transferring guardianship from the parent to the kinship guardian. For co-guardian scenarios, the parent would retain guardianship as well. 

In order to be granted guardianship, various conditions must be met: the child must have a strong attachment to the guardian and the guardian must have a strong commitment to caring for them, the guardian must demonstrate the ability to provide for the child’s physical, mental, emotional, educational, and psychological needs without supervision from the state (though financial assistance can be provided), the child indicates a desire to continue a family relationship and residence with the guardian, and it is considered in the child’s best interests by the court. You can find out more about applying for guardianship in California here.

If you are a kinship provider and need legal support for custody, guardianship, or other concerns, here is an article [Link coming soon] to help you find available resources.

If you are a grandfamily and would like more information about the resources available to your family, you can find general information here, and California-specific information here.

Forms to Secure Responsibilities for Kinship Children

It can be challenging to navigate all the forms for authorization of kinship responsibilities, particularly for grandfamilies and relatives who are caring for children outside of adoption scenarios. These include parental designation, power of attorney, and the caregiver affidavit. Below are links and information regarding these documents.

[Link to forms coming soon]

Parental Designation Form

When the child’s parent/s are unavailable or unable to make decisions about the child’s education and other primary needs, the parental designation form (or OCFS Designation of Person in Parental Relationship form) allows the grandparents or relative to make the decisions instead, listing them as a “designee.” This designation is limited to a certain period of time, as well as other specifications determined by the parent. To authorize the designation, the kinship caregiver and the biological parent/s need to sign the form and have it notarized.

California Minor Child Power of Attorney Form

Power of attorney is an assignment of parental, custody, or guardian rights that allows kinship caregivers to make major decisions for the child, including life-saving choices about medical care and mental health needs, when the biological parents are absent. Power of attorney is temporary and typically lasting for six months. It requires the approval of the biological parent/s, and parents can revoke power of attorney at any time by filing a different form. To transfer power of attorney, the kinship caregiver and the biological parents need to sign the form and have it notarized.

Find the form here.

Caregiver’s Authorization Affidavit

Some grandparents and relatives provide care for children but do not pursue legal guardianship for various reasons, including their relationship with the child’s biological parents, the amount of time the relative will be caring for the child, or limits on their permission for guardianship. A Caregiver’s Authorization Affidavit allows grandparents or relative caregivers to provide proof to the child’s school and to medical professionals that they are authorized to make relevant decisions for the child. The kinship caregiver needs to sign the authorization affidavit and have it notarized in order for it to be legally recognized. The parent does not need to sign the affidavit, but they have the right to cancel it. This arrangement is only valid while the child is living with the kinship caregiver. 

Find the form here

Kinship Resources for Legal Services

If you are a grandparent or relative caregiver and need help to navigate legal concerns or resolve a serious issue for the child, you are not alone. There are many free and low cost resources, including legal staff on hand, that can help you to move through challenges and provide the best resolution for your family.

California Courts

California courts offer free and low cost legal resources, including free help from a family law facilitator or a self help center. Family law facilitators are lawyers with experience in family law who can help with forms, referrals, and things like domestic violence or custody issues. Self help center services are free, and despite their name, have court lawyers and staff on hand. Note, these staff members do not act like a personal lawyer — there is no confidentiality requirement, for example. 

Additionally, the California courts website offers self-help resources covering topics like adoption, child custody and visitation, and guardianship, among many others. These include helpful guides and links to services that might be helpful in the meantime. 

Self Help Centers

As mentioned above, kinship caregivers can take advantage of local self help resources — there are links to each county’s online self help centers via the California Courts website. On each county’s website there are a host of services and legal resources and recommendations. Just a few of the options include a listing of the self help center on-site locations, contact information for lawyers, and a phone number to speak to someone directly. 

Statewide Agencies

In addition to receiving county-level support, grandparents and relative caregivers can reach out to statewide agencies like Legal Aid at Work and Catholic Charities USA. Legal Aid At Work offers hotlines, resources, and more personal legal support if needed. Catholic Charities provides resources for many different needs, including family challenges. Caregivers can find their local California Catholic Charity here and reach out directly to see what might be available in their situation.

Alliance for Children’s Rights

There are many organizations that specifically address kinship and foster care needs. One of these is the Alliance for Children’s Rights, which advocates for children, young adults, and families within foster care or kinship care and provides free legal support. The alliance works with pro bono partners to provide legal services to families who are adopting children from the foster care system. It works closely with Children and Family Services, and will represent kinship caregivers in probate court in regards to legal guardianship. 

Area Agency on Aging

For grandfamilies, there are local Area Agencies on Aging that might provide legal assistance for kinship care issues. There are different Area Agency on Aging websites for each county. For example, California residents in the Napa/Solano area can visit this website for more information. There is an additional guide resource guide here

AdvoKids 

Advokids is an organization dedicated to advocacy and protection for foster children, with a particular focus on providing legal resources. Kinship caregivers can take advantage of the free telephone hotline, and Advokids’ staff attorneys and pro bono attorneys provide assistance with appeals and amicus briefs. The organization additionally fights for statewide child welfare reform and provides training and conferences to help support the needs of children in kinship and foster families.

facebook pixel