Frequently Asked Questions
About Relatives Raising Children

Q. Who are “kinship caregivers’?
A. Any non-parent caregiver, including grandparents, relatives, and even non-relatives, who provides full time care for children in their home is a kinship caregiver. There are two basic types of kinship caregivers: those who are not foster parents and those who are foster parents. When this term is applied to foster parents it usually means grandparents and other relatives, but not unrelated caregivers.

Q. What laws apply to “kinship care”?
A. There are many laws that apply to non-parents who are caring for children, including laws governing their authority, access to records, custodial rights, financial assistance, and access to services. Most of these laws don’t use the term “kinship care.” Instead, laws use other terms, like “person in parental relation”, “person upon whom a child is dependent,” etc. Some laws only apply to grandparents, some to grandparents and relatives, some to all caregivers, even nonrelated caregivers.

Q. Can kinship caregivers enroll children in school?
A. Yes. Some school districts will demand legal custody or guardianship. Such requirements can be challenged by proving that the caregiver is really taking care of a child and that the child is really residing permanently with the caregiver.

Q. What are my rights as a grandparent or another relative?
A. Grandparent Rights traditionally refer to the right to visitation. Grandparent visitation law dates back to the 1960’s when states began to enact statutes that gave grandparents the right to seek visitation. It is important to understand that no grandparent has a right to visit their grandchildren. They only have a right to seek visitation. Visitation laws commonly talk about grandparents visiting children who live with their parents, but laws will also govern grandparent visitation with children who are in state care. Recently, states have enacted laws providing certain other “rights” to grandparents. Such “rights” are usually about very limited legal situations, for instance, notice about neglect proceedings or custody. In New York, a special statute governs grandparents who are seeking custody of children who are living with them. Yet, no state’s laws treat grandparents as the natural guardians of their grandchildren, and there is no grandparent right to assume custody when parents cannot parent. For other relatives, in certain limited circumstances laws may provide family members more “rights” than strangers. For instance, federal law will pay a special public assistance grant to blood relatives who are caring full time for children, and state and federal laws insist upon a search for relatives when children are removed from their parents. These statutory rights are just part of a larger discussion about families having a “fundamental right” to raise children when parents are unavailable. In other words, the extension of parental rights to family members who’ve assumed parental duties or who want to assume such duties. The U. S. Supreme Court has declared that under certain circumstances when relatives have assumed parental duties, such a transfer of rights does occur. However, few courts have chosen to provide parental rights to family members.

Q. What is the difference between guardianship and custody?
A. The distinctions between guardianship and custody are the subject of much confusion, even among legal professionals. A discussion of the similarities and distinctions breaks down into three areas: court procedures, statutory powers, and actual practices. For court procedures, the standards in disputes between parents and non-parents are the same for both guardianship and custody (both Surrogate’s Courts and Family Courts have jurisdiction over “guardianship of the person”). The standard is that both procedures must find an “extraordinary circumstance” before deciding the best interests of children. But, the procedural investigations differ. However, only guardianship proceedings must include reports on criminal record checks and child abuse registries. Regarding statutory powers, there are many laws that declare what “parents and guardians” can do. Most of these do not include legal custodians. Instead, they define certain decision-making powers only for parents and guardians, including medical decision-making. In practice, guardianship and legal custody have almost identical authority. Even the exclusion of medical authority is usually ignored. However, incidences do occur where a medical provider balks at accepting the authority of a non-parent legal custodian. Bottom line, the legal distinctions are often inconsequential and do not affect care giving.

Q. Do I need a lawyer to file for visitation/custody/guardianship?
A. If you have the consent of the parent (s), then an attorney may not be necessary. If the evidence is very strong to prove that a parent is unfit then you may be able to prevail without an attorney. If the outcome is uncertain, and it is likely that the proceedings will go to trial, then a lawyer is certainly a big plus. However, under all circumstances you have a legal right to represent yourself “pro se,” which means on your own. While there is very little legal representation for kinship caregivers, many kinship programs provide legal consultations and a few offer representations.

Q. Can I get public assistance for a child in my care? If I can, how much can I collect in public assistance for children in my care?
A. Non-parents who are providing full time care for children can receive a public assistance grant which disregards their income and resources. Because non-parents have no legal obligation to support children, such grants are based “only” on the income and resources of children. Local public assistance offices may use different names for this grant but it is available everywhere. The calculation of the grant amount is subject to a number of factors, including charges for room and board and other sources of income for the child.

Q. The parents do not have any money to pay child support. What will happen when DSS goes after them?
A. Family Courts have special proceedings where judges or special support magistrates decide how much support should be paid by the parents. The local department will go to court in order to seek repayment for its expenses. The court independently decides who pays how much and may recognize that very little can be paid, or it may decide to penalize a parent for non-payment. Penalties include garnishing salaries, suspension of driver’s licenses, and even incarceration. While non-parents are legally obligated to inform the local department about the whereabouts of the parents, there is an opportunity afforded to claim an exemption. If the caregiver believes that they or the children in their care may be subject to physical or emotional harm then they may ask to be excused from providing information about the parents.

Q. What is helpful as evidence if a grandparent seeks visitation with a grandchild?
A. Domestic Relations Law Section 72, which governs grandparent visitation, declares that grandparents may seek visitation when a parent is deceased or “where equity would see fit to intervene.” Courts have decided that only certain circumstances warrant court intervention.

Q. I was never notified that the child was removed or my rights. What can I do?
A. You can talk to the local department and see if they will identify you to the court as a suitable relative or you can go to court on your own and seek to “intervene” in the Article Ten proceeding. Another alternative, you can petition to become a foster parent under Family Court Act 1028-a. The opportunity to petition is subject to time limitations. Family Court Act Section 1017 states that “all grandparents” should be notified. However, at this time there are no
reported cases that examine whether there is a legal remedy for grandparents who never received notice.

Q. How does CPS determine who is a “suitable” relative when a child is removed from the home?
A. Once a child is removed the local department must go to court and start an “Article Ten” proceeding. The Family Court judge will then make all decisions regarding the placement of children. The judge is legally obligated to ask the department about relatives, including all grandparents, who might care for children and the department is obligated to search for relatives including all grandparents. The scope and diligence of this search depends on many factors, and the law about searches was recently amended by the federal government. The search must occur within thirty days of a child’s removal and all notified relatives must be informed of their options and the consequences of children entering foster care with non-relative foster parents. If a relative is identified, the court may place the child with the relative. Courts have a variety of ways to facilitate the placement ranging from temporary custody to kinship foster care, or permitting the relative to on their own start a separate proceeding for custody.

Q. What is helpful as evidence if I am filing for custody/guardianship?
A. Petitions for custody and guardianship are significantly different. Custody petitions are much simpler. However, for either petition you will need to show that the parents will consent or that you can claim an “extraordinary circumstance.” Extraordinary circumstances are facts that show a parent’s unfitness or inability to parent. Other extraordinary circumstances are mental illness, abandonment, or situations where you’ve been caring for the children for an extended period of time. Showing extraordinary circumstances in your petition is an absolute necessity in order to go forward, so your petition must describe some facts that, if proven, would fulfill the extraordinary circumstances test.

Q. I would like to adopt my grandchild. What will change?
A. Adoption means that you become the legal parents of the child. The birth parents no longer have any parental rights. The new adoptive parent can make all parental decisions and assumes all parental responsibilities, including the obligation to support the children. You assume the support obligation and so you can no longer get a “child-only” (nonparent) grant. But the child may still be eligible for benefits under any program that cover parents and children. Also, adoption means that you can change the child’s name, get access to all records, make all decisions, and travel anywhere.

Q. How do I get medical benefits for the child?
A. Because you are not the parent, you can apply for a “non-parent” public assistance grant. If the child has little income or resources, you will receive the grant and automatically qualify the child for Medicaid. In the alternative, you may seek health coverage thru the State Child Health Program, which also provides health insurance for children. Lastly, you can put the child on your own private health insurance. However, not all policies will cover dependent children who are not your own. You should review your policy, and if you have yet to petition for custody or guardianship, and then make sure that your policy covers either or both legal arrangements.

Q. Who can become a Foster Kinship Parent?
A. The following relatives can become kinship foster parents: grandparents, aunts, uncles, brothers, sisters, cousins, great aunts and uncles, and their husbands and wives.

Q. Do kinship foster parents have legal custody of the child?
A. No. A kinship foster care parent has temporary physical custody. Legal custody of that child is with the state or the agency acting for the state. This means that the kinship foster care parent takes care of the child's daily needs but cannot make any major decisions regarding the child without first obtaining the consent of the agency that acts for the state.

Q. Is Kinship Foster Care Permanent?
A. No. Kinship foster care may be for a temporary or long-term period, but it is not permanent. Like regular foster care, the goal is to find a permanent safe and healthy home for the child. The Child Welfare Agency will first try to reunite the parents with the children but if this is not possible, then the agency must have another plan for the child. The plan may include adoption, guardianship or another permanent living arrangement for the child. As a kinship foster parent, you may have to decide whether you are going to adopt your grandchildren, become their guardian or whether you are going to allow another adoptive family to be found.

Q. As a kinship foster parent what rights do I have if the parent wants the child back?
A. As a foster parent, you provide the care to the children, but the child welfare agency has legal custody of the child. The agency has the right to remove that child from your care at any time.

If the parent is seeking custody of the child and is working on becoming a fit parent, the Child Welfare Agency will try to reunite the child and parent together again. However, if your grandchild has been with you in foster care for one year or more, you have the right to participate in any hearing regarding your grandchild's custody.

Q. How much will I receive in kinship foster care payments?
A. The amounts of the payments differ from county to county and depend on the age of the child, where the child lives, and whether the child has any special needs.

Q. What are the requirements to be kinship foster parents?
A. In order to be approved as a kinship foster care parent, you have to agree to a background
check and you must be a relative of the child. In addition, you should meet the following criteria:

  • Be over the age of 21, in good physical and mental health, free from communicable diseases.
  • Can be employed as long as arrangements are made to have the child supervised at all times.
  • Can be single or married as long as the person's marital status does not affect the person's ability to give adequate care to the child.
  • Keep your house in a good condition and not a hazard to the child's health or safety.
  • Have sufficient sleeping arrangements and space.
  • Never leave children under the age of 10 alone without competent supervision.
  • Give the child good quality food.
  • Keep the children's clothes, whether provided by the foster parent, the agency or the child parents, in proper condition.
  • Provide proper toiletry articles for the children in their care.
  • Recognize and respect the religious wishes of the parents.
  • Cooperate with the agency and report any incident which affects the child's well-being.
  • Allow a representative from the child welfare agency to enter your home to investigate any normal complaint about the care of the child.
  • Inform the Child Welfare Agency of any changes in the household (when someone moves in or out or when you get married or divorced).
  • Agree to cooperate and assist with visits between brothers and sisters who have been placed apart.
  • Arrange for school age children to attend school regularly.
  • Cooperate with the agency regarding the services and discharge plan.
  • Provide information about whether you have ever been convicted of a crime (a check will be made of any criminal history).
  • Get fingerprinted (any people who are over 18 and live with you must also be fingerprinted).

Q. What if the child is an immigrant
A. Children who are without legal status to be in the United States may not be eligible for TA, Medicaid, and other benefits. However, a youth in foster care may be able to achieve legal status by applying for Special Immigrant Juvenile Status (SIJS). A child or youth who has this status can obtain a green card, become a lawful permanent resident, get financial aid for college, and work in the U.S. For many youth in foster care who are undocumented immigrants, this is their only chance to file for legal status, and it has to be done before the youth turns 21. Ask the child’s law guardian/attorney for the child and DSS about whether the child can apply for this status. Children who live with a guardian or have been adopted after having been found dependent by the court also may be eligible for SIJS.
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