Kinship Guardianship as a Permanency Option - Idaho

Date: July 2018


Citation: Ann. Code § 16-2002; Dept. Child Welfare Stds.

The term 'legal custody' means the status created by a court order that vests in a custodian the following rights and responsibilities:

  • To have physical custody and control of the child and to determine where and with whom the child shall live
  • To supply the child with food, clothing, shelter, and incidental necessities
  • To provide the child with care, education, and discipline
  • To authorize medical, dental, psychiatric, psychological, and other care and treatment for the child

'Guardianship of the person' means those rights and duties imposed upon a person appointed as guardian of a minor under State law. It includes, but is not necessarily limited to the following:

  • The authority to consent to marriage; enlistment in the armed forces of the United States; major medical, psychiatric, and surgical treatment
  • The authority to represent the minor in legal actions and to make other decisions concerning the child of substantial legal significance
  • The authority and duty of reasonable visitation, except to the extent that such right of visitation has been limited by court order
  • The rights and responsibilities of legal custody, except when legal custody has been vested in another individual or in an authorized child-placing agency
  • The authority to consent to the adoption of the child and to make any other decision concerning the child that the child's parents could make when the parental rights of both parents have been terminated by judicial decree or when there is no living parent

In policy: A 'relative' is a person who is related to a child by blood, marriage, or adoption. This includes a child's grandparent, great-grandparent, aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, first cousin, sibling, and half-sibling.

A 'relative guardian' is a relative who is appointed a child's legal guardian, including a guardianship established by a Tribal court.

Purpose of Guardianship

Citation: Dept. Child Welfare Stds.

When a young person is living with a relative or there are other compelling reasons not to terminate parental rights, legal guardianship can be a good permanent solution. Legal guardianship should be considered when:

  • Efforts to reunify the youth with parents have been exhausted and it remains unsafe for the youth to return home.
  • A more permanent option, such as adoption, is not feasible.
  • The youth is not amenable to adoption.
  • The youth is living with a relative who is interested in being a permanent resource for the youth.
  • The youth and family do not agree with termination of parental rights and adoption.

A Guardian's Rights and Responsibilities

Citation: Dept. Child Welfare Stds.

A legal guardianship is a relationship that is intended to be permanent and self-sustaining, as evidenced by the transfer to the guardian of the following parental rights with respect to the child:

  • Protection
  • Education
  • Care and control of the person
  • Custody of the person
  • Decision-making

Qualifying the Guardian

Citation: Admin. Code §§;

The Department of Health and Welfare or its contractor will determine the suitability of an individual to become a legal guardian for a specific child or sibling group through a guardianship study.

To be eligible for a federally funded guardianship assistance payment, all prospective legal guardians and other adult members of the household must receive a criminal history and background check clearance. As a licensed foster parent, if the prospective relative legal guardian has already received a clearance, another check is not necessary.

Procedures for Establishing Guardianship

Citation: Dept. Child Welfare Stds.

A legal guardianship is a judicially created relationship, including one made by a Tribal court, between a child and a relative or nonrelative.

Legal guardianship does not require a termination of parental rights. The legal guardian is awarded legal custody of a child. Because it is mediated by court review, legal guardianship is considered a positive permanency option when adoption is not possible or practical.

Contents of a Guardianship Order

This issue is not addressed in the statutes and regulations reviewed.

Modification/Revocation of Guardianship

Citation: Dept. Child Welfare Stds.

If at any time the legal guardian or the child's parent wants to terminate the guardianship, he or she must file a petition and go before a court to have the legal relationship dissolved.

A prospective relative legal guardian may identify a successor legal guardian in the child's IV-E funded guardianship assistance agreement to be appointed guardian of the child should the original guardian die or become incapacitated and unable to care for the child. Successor legal guardians are not required to be relatives but cannot be the child's birth parents. Successor legal guardians and all adults residing in their homes must pass a fingerprint-based criminal history and child protection background check.

A child for whom a successor legal guardian is identified will remain eligible for IV-E relative guardianship assistance benefits in the event of the death or incapacitation of the relative legal guardian. For the benefits to be paid, the successor legal guardian will need to assume guardianship of the child before negotiating a new guardianship assistance agreement.

Kinship Guardianship Assistance

Citation: Admin. Code §§;

To receive guardianship assistance, a potential legal guardian must apply for and receive a foster care license.

The Department of Health and Welfare will determine eligibility for guardianship assistance for each child placed in the legal custody of the department prior to the finalization of the guardianship. The child will first be considered for eligibility for a federally funded subsidy. Should the child be found ineligible for a federally funded subsidy, the child will then be considered for a State-funded subsidy.

The following requirements apply to a federally funded guardianship assistance for an eligible child and a relative guardian. A child is eligible for a federally funded guardianship if the child:

  • Is age 14 or older sometime during the consecutive 6-month residence with the prospective relative legal guardian
  • Has been removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child
  • Cannot be returned home or adopted because it is determined that those are not appropriate permanency options for the child
  • Has been eligible for title IV-E foster care maintenance payments during at least 6 consecutive months during which the child resided in the home of the prospective relative legal guardian who was licensed or approved as a foster family home
  • Has been consulted regarding the legal guardianship arrangement
  • Has demonstrated a strong attachment to the prospective relative legal guardian, and the relative legal guardian has a strong commitment to caring permanently for the child

The department may make guardianship assistance payments in accordance with a guardianship assistance agreement on behalf of each sibling of an eligible child, under age 18, who is placed with the same relative under the same legal guardianship arrangement.

Links to Agency Policies

Idaho Department of Health and Welfare Child Welfare Standards, Standard for Guardianship Assistance (PDF - 101 KB)