Kinship Guardianship as a Permanency Option - Delaware

Date: July 2018

Definitions

Citation: Ann. Code Tit. 13, § 2302; Tit. 10, § 901

The term 'guardian' means a nonparent or an agency charged with caring for a child during the child's minority.

The term 'relative' means any person within the immediate family, and any grandparent, uncle, aunt, first cousin, great-grandparent, grandaunt, granduncle, half-brother, or half-sister.

Purpose of Guardianship

Citation: Ann. Code Tit. 13, § 2350

Permanent guardianship models the requirements of 'legal guardianship' under the Adoption and Safe Families Act of 1997 (P.L. 105-89, 42 U.S.C., § 675(7)). Permanent guardianship is intended to create a relationship between a child and caregiver that is permanent and self-sustaining and which creates a permanent family for the child without complete severance of the biological bond.

A Guardian's Rights and Responsibilities

Citation: Ann. Code Tit. 13, § 2340

A guardian shall be granted such powers, rights, and duties that are necessary to protect, manage, and care for the child. The guardian of the child may exercise the same powers, rights, and duties respecting the care, maintenance, and treatment of the child as a parent would, except that the guardian of the child is not liable to third persons for acts of the child solely by reason of the guardianship relationship. The guardian is entitled to custody of the child and may establish the child's place of abode within or outside the State.

The guardian shall provide the child with:

  • A physically and emotionally healthy and safe living environment and daily care
  • Education
  • All necessary and appropriate medical treatment, including, but not limited to, medical, dental, and psychiatric examinations, treatment, and/or surgery

The guardian shall make decisions regarding:

  • Education
  • Travel
  • All necessary and appropriate medical treatment, including, but not limited to, medical, dental, and psychiatric examinations, treatment, and/or surgery
  • The child's right to marry or enlist in the armed forces
  • Representation of the child in legal actions
  • Any other matter that involves the child's welfare and upbringing

The guardian shall:

  • Be responsible for the health, education, and welfare of the child
  • Comply with all terms of any court order to provide the child's parents with visitation, contact, or information

The court, in its discretion, may expressly limit the duties and powers of the guardian as set forth in this chapter.

Qualifying the Guardian

Citation: Ann. Code Tit. 13, §§ 2351; 2353

A relative, foster parent, or guardian may serve as permanent guardian of a child and may petition the family court for a permanent guardianship order regarding a child that is not his, hers, or theirs. The proposed permanent guardian must:

  • Be emotionally, mentally, physically, and financially suitable to become the permanent guardian
  • Be a foster parent or guardian who has been caring for the child for at least 6 months, held guardianship for at least 6 months at the time of the filing of the petition, or be a relative
  • Have expressly committed to remain the permanent guardian and assume the rights and responsibilities for the child for the duration of the child's minority
  • Have demonstrated an understanding of the financial implications of becoming a permanent guardian

Procedures for Establishing Guardianship

Citation: Ann. Code Tit. 13, §§ 2351; 2352; 2353

The Department of Services for Children, Youth and Their Families (DSCYF), a licensed agency, or guardian ad litem may petition the Family Court for a permanent guardianship order so long as the proposed permanent guardian or guardians consent to the appointment.

A petition for permanent guardianship shall contain the following information:

  • The grounds for the granting of an order of permanent guardianship
  • A statement outlining prior efforts to place the child for adoption, if applicable

The court shall grant a permanent guardianship if it finds by clear and convincing evidence that:

  • One of the statutory grounds for termination of parental rights has been met.
  • Adoption of the child is not possible or appropriate.
  • Permanent guardianship is in the best interests of the child.
  • The proposed permanent guardian has been found to be suitable.
  • If the child is age 14 or over, the child consents to the guardianship or, if the child does not consent, just cause why the guardian should be appointed.
  • If the proposed permanent guardian is a foster parent or parents:
    • The child is at least age 12.
    • The proposed permanent guardian is the permanent guardian of one of the child's siblings.
    • The child receives substantial governmental benefits for a serious physical and/or mental disability that would no longer be available to the child if parental rights were terminated or the child was adopted.

If the court determines that the requirements above have been met, then the court also shall determine, by a preponderance of evidence, the nature and extent, if any, of any contact, sharing of information, and/or visitation between the parent and the child. In making such a determination, the court shall apply the best interests of the child standard.

The parent or parents may voluntarily consent to the permanent guardianship provided the requirements above are met.

Contents of a Guardianship Order

Citation: Ann. Code Tit. 13, § 2356

If the court grants permanent guardianship, it shall include in that order provisions regarding visitation by the child with the child's parents, contact by the child with his or her parents, and the sharing of information to be provided to the parents about the child, all based upon the child's best interests. The order granting permanent guardianship may prohibit visitation, contact, or information if such prohibition is in the child's best interests. The order granting permanent guardianship may incorporate an agreement reached by the parties.

Modification/Revocation of Guardianship

Citation: Ann. Code Tit. 13, § 2359

Permanent guardianship of a child terminates upon the permanent guardian's death; upon adoption of the child; when the child reaches the age of majority; or as otherwise ordered by the court.

An order of permanent guardianship may be modified regarding contact, visitation, or sharing of information only upon a finding that there has been a substantial change in material circumstances and that modification is in the best interests of the child.

An order of permanent guardianship may be rescinded only upon a finding that there has been a substantial change in material circumstances and that rescission is in the best interests of the child.

A parent may not petition the court to rescind a permanent guardianship once granted under this chapter. When the permanent guardianship is rescinded by the court, custody of the child shall not automatically revert to the parent. At any subsequent hearing, the parent shall be considered with no greater priority than any other person or agency, and in entering any further order regarding the child the court shall apply the best interests of the child standard. If the permanent guardianship is rescinded, and DSCYF held custody immediately prior to the entry of the order, custody shall revert to DSCYF.

Upon a showing by affidavit of immediate harm to a child, the court may:

  • Temporarily stay a permanent guardianship order on an ex parte basis pending a hearing and grant temporary custody of the child to DSCYF or temporary guardianship to a petitioner
  • Stay the visitation, contact, or information provisions of a permanent guardianship order on an ex parte basis pending a hearing

Kinship Guardianship Assistance

Citation: Ann. Code Tit. 31, § 356

DSCYF and the Department of Health and Social Services shall establish and operate the Kinship Care Program that promotes the placement of children with relatives when a child needs out-of-home placement, when such placement is in the best interests of the child, and when the child is not in the custody or care of the State.

The Kinship Care Program shall establish eligibility guidelines for kinship caregivers to qualify for kinship care benefits and services, including the following criteria:

  • The caregiver must be related to the child by blood or marriage within the fifth degree of consanguinity.
  • The caregiver must have guardianship of the child or actively pursue guardianship.
  • The child must reside in the home of the caregiver.
  • The caregiver must have income of no more than 200% of the Federal poverty level.
  • The parent or parents of a child in the kinship care program may not reside in the home of the kinship caregiver.

Links to Agency Policies

Delaware Family Court, Guardianship Overview

Related Resources