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.