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. See various legal facts sheets on individual areas of law.
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 non-related caregivers. See various legal facts sheets on individual areas of law.
Yes. Some school districts will demand legal custody or guardianship. Such requirements can be challenged by proving that the caregiver is really taking of a child and that the child is really residing permanently with the caregiver. See the education affidavits in the legal section.
Grandparent Rights traditionally refer to the right to visitation. Grandparent visitation laws 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. You can learn more about grandparent visitation by reviewing our legal fact sheets.
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 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
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 circumstances” 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 effect caregiving. For more on the authority of non-parents, see various legal fact sheets, including birth certificates, passports, and school enrollment.
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 representation. Check the legal assistance section for more information or call the local kinship program in your county.
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. Here are some of the common names: “child-only” grant, non-parent grant, NDG (non-dependent grantee), and “kinship” grant. See our public assistance legal fact sheet for more information.
A full grant pays between $300 to $500 per month for one child. For each additional child the grant increases between $100 and $200. However, 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. It’s best to seek help in making application, so you can truthfully optimize the amount of the grant and avoid delays in getting it. There are also federal social security benefits. See fact sheet on our website.
In general, if the parent lives with you, then you cannot get the “child-only” grant. However, if the parent is not actually acting as a parent, sometimes a nonparent (child-only) grant is awarded. Such circumstances are unusual, yet you should explain the residential circumstances to the local department and insist on getting an official decision regarding your application.
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. See our legal fact sheets for more information.
Once a child is removed, the local department must go to court and start an “Article Ten” proceedings. 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 the grandparents. The scope and diligence of this search depends on many factors and the law about searches was recently amended by the federal government. Now, 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.
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. And there is another alternative, you can petition to become a foster parent under Family Court Act Section 1028-a. Under Section 1028-a, the opportunity to petition is subject to time limitations; see our legal fact sheet for more information.
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.
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 circumstances.” 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. For more information, see our legal fact sheets on “third-party” custody.
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.
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 see 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.
Many state agencies offer services that could help caregivers. For instance, the local Office for the Aging has special programs to assist the elderly. Since many kinship caregivers are over 55 years of age, they qualify for aging programs, including some legal assistance. Also, some county Offices for the Aging have specialized programs for kinship caregivers. The New York State Office of Children and Family Services administers thirteen programs, serving about 20 counties. Also, Cornell Cooperative Extensions, Catholic Charities, Jewish Board of Family Services, and other non-profit agencies have specialized kinship services. For a complete list of services in your area, see the county resources.
