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Neighborhood Legal Services, Inc.

Custodial Arrangements for Kinship Providers—The Alternatives

There are many different relationships a caregiver may have with a child in New York State. Some are informal and are done without court intervention. Other relationships have been established legally, through a court order. This outline is intended to be very basic. You should consult an attorney concerning your specific situation.

Informal Custody Arrangements
In this situation a child lives with a relative with the consent or at least the acquiescence of the parents. There is no court order. There may be an informal written agreement. Generally, the parent(s) will retain the right to make major decisions regarding the child. The parent(s) also will retain the right to remove the child from the caregiver at any time. If this occurs during a “crisis”, i.e. when the parent is having a substance abuse or an acute mental health problem, the relative has no means to force the parent to return the child. The child abuse hotline will have to be called if the child is in danger. Informal custodial arrangements should only be considered in situations where a relative has a good relationship with the child’s parents and where the duration of the arrangement is limited. It is sometimes recommended that the relative secure a power of attorney from the parent(s). This can be helpful to secure medical care for the child and give the relative some limited power concerning the child, especially if the parent(s) are going to be difficult to reach.

Legal Custody, usually obtained by a non-parent in Family Court, gives the relative the right to make major decisions affecting the child. The parent(s) cannot remove the child from the relative’s home without a court order or the consent of the relative. In order to obtain custody a petition must be filed. If the parent(s) agree to granting a relative custody the proceeding is usually simple. However in any custody case, including one in which all the adults agree, the court can appoint a law guardian to represent the interests of the child. If one or both parents do not agree that the relative should have custody, generally the relative has to show that there are extraordinary circumstances to obtain a custody order. Extraordinary circumstances can include parental abandonment, neglect, abuse or unfitness among other situations. Once extraordinary circumstances are established, the court will go on to award custody based on the best interests of the child. In almost all cases, if the relative obtains legal custody, the parents will still have the right to visit the child.

Obtaining legal custody has many practical benefits: preventing a potentially dangerous parent from removing the child from the relative’s care; helping the relative obtain benefits for the child, deal with school authorities, and obtain medical care. When a relative has legal custody this does not terminate parental rights. If the parent can show a change of circumstances affecting the best interest of the child the custody order can be modified at a later time. It is relatively easy to file a custody petition through Family Court’s Legal Division (4th Floor), 25 Delaware Avenue, Buffalo, New York [Telephone: (716) 858-8100]. However, it is recommended that the relative retain an attorney, particularly if a parent is going to oppose the petition.

Guardianship is similar to legal custody. However, relative guardianships are usually handled in Surrogates Court. A guardian over the person has basically the same powers over the child as someone who has legal custody. A guardian over the property also controls the child’s finances. Obtaining a guardianship by consent of the parents is usually a simple procedure. However, the State Registry will be checked by the court to see whether the relative has any indicated report of abusing or neglecting a child. A criminal records check will also be conducted. More information concerning guardianships can be obtained through Surrogate’s Court, 92 Franklin Street, Buffalo, New York [Telephone: (716) 854-7867].

Kinship Foster Care arises after an abuse and/or neglect petition is filed against the parent(s), the Department of Social Services gains legal custody and the child is placed with a relative. At that point, a relative caregiver must be given the option of applying to become a certified foster care provider. If the relative elects to apply for and gains certification, she becomes eligible to receive foster care payments that are considerably higher than the public assistance payments a child would otherwise be eligible to receive. The relative foster care provider is also eligible to receive the same services a non-relative foster home would receive. However, the child is still in the legal custody of the Department of Social Services and major decisions affecting the child are made by the Department of Social Services. The relative foster care provider must also cooperate with the Department of Social Services with respect to periodic home visits and in facilitating visitation with the parents. A relative who has a criminal record, an indicated report of child abuse and neglect with the State Registry, or a disability affecting her ability to care for children may be disqualified from certification. In most cases, kinship foster care is limited in duration as the ultimate goal of foster care will usually be the return of the child to the parent(s), adoption, or granting custody to the relative. If, rather than become a certified foster care provider, a relative caregiver chooses to obtain legal custody some limited services are available through the Kinship Unit of the Department of Social Services.

Adoption is a permanent legal relationship granted by the court giving the relative the status of a parent with all of the associated rights and responsibilities including the presumptive obligation to financially support the child until the age of 21. Adoption can be obtained by consent or after parental rights have been terminated by the court. When an adoption is done by consent, the natural parents through an agreement with the adoptive parents, may be able to retain some very limited rights to see or communicate with child. This is called an open adoption. Adoption subsidies are available for children who have been in foster care and have special needs. A criminal record or an indicated report of child abuse or neglect in the State Registry may preclude a relative from adopting. An attorney needs to be retained if a relative is interested in adoption.

Local Resources

Neighborhood Legal Services, Inc. (716) 847-0650 http://www.nls.org

Legal Services for the Elderly, Disabled or Disadvantaged of W.N.Y. (716) 853-3087 http://www.lsed.org

Western New York Law Center http://www.wnylc.net

Updated, July 2005