Kinship Guardianship as a Permanency Option - Kansas

Date: July 2018


Citation: Ann. Stat. § 38-2202

The term 'custody,' whether temporary, protective, or legal, means the status created by court order or statute that vests in a custodian, whether an individual or an agency, the right to physical possession of the child and the right to determine placement of the child, subject to restrictions placed by the court.

'Kinship care placement' means the placement of a child in the home of the child's relative or in the home of an adult with whom the child or the child's parent already has close emotional ties.

The term 'permanency goal' means the outcome of the permanency-planning process, which may be reintegration, adoption, appointment of a permanent custodian, or another planned permanent living arrangement.

The term 'permanent custodian' means a judicially approved permanent guardian of a child pursuant to § 38-2272.

Purpose of Guardianship

Citation: Pol. & Proc. Man. § 3231

For youth for whom the court has determined that reintegration and adoption are not viable permanency options, permanent custodianship provides the child with the next preferable goal. Permanent custodianship enables the caregiver to exercise all the rights and responsibilities of a parent without the on-going oversight of the Department for Children and Families. Custodianship may be an option for youth with or without the termination of parental rights.

A Guardian's Rights and Responsibilities

Citation: Ann. Stat. § 38-2272

Subject to limitations included in the custodianship order, a permanent custodian shall stand in loco parentis and shall exercise all of the rights and responsibilities of a parent except the permanent custodian shall not:

  • Consent to an adoption of the child
  • Be subject to court-ordered child support or medical support

Unless there has been a judicial finding of unfitness or court-ordered limitations, a permanent custodian may share parental responsibilities with a parent of the child as the permanent custodian determines is in the child's best interests. Sharing parental responsibilities does not relieve the permanent custodian of legal responsibility for the child.

If a permanent custodian is appointed after a judicial finding of parental unfitness without a termination of parental rights, the parent shall retain only the obligation to pay child support and medical support, the right to inherit from the child, and the right to consent to adoption of the child. All other parental rights transfer to the permanent custodian.

If a permanent custodian is appointed after termination of parental rights, the parent retains no right or responsibilities to the child.

Qualifying the Guardian

Citation: Ann. Stat. §§ 38-2272; 59-2132

Prior to appointing a permanent custodian, the court shall receive and consider an assessment of any potential permanent custodian as provided in § 59-2132. In making an order appointing a permanent custodian, the court shall give preference, to the extent that the court finds it in the child's best interests, first to appointing a permanent custodian who is a relative of the child and second to a person with whom the child has close emotional ties.

In making the assessment, the person authorized to perform assessments or the Department for Children and Families is authorized to observe the child in the petitioner's home, verify financial information of the petitioner, and clarify any genetic and medical history filed with the petition. The assessment also must include checking the name of the petitioner with the child abuse and neglect registry through the department and, when appropriate, with a similar registry in another State or nation. Criminal history checks are required for determining whether the petitioner has been convicted of a felony for any act described in articles 54, 55, or 56 of chapter 21 of the Kansas Statutes or §§ 21-6104, 21-6325, 21-6326, or 21-6418 through 21-6422; of a felony violation of article 57 of chapter 21 of the Kansas Statutes within the last 5 years; or any felony violation of any provision of the uniform controlled substances act.

Procedures for Establishing Guardianship

Citation: Ann. Stat. § 38-2272

A permanent custodian may be appointed:

  • With the consent and agreement of the parents and approval by the court
  • After a finding of parental unfitness pursuant to § 38-2269
  • After termination of parental rights

Upon the appointment of a permanent custodian, the department's custody of the child shall cease. The court's jurisdiction over the child shall continue unless the court enters an order terminating jurisdiction.

Parental consent to the appointment of a permanent custodian shall be in writing and shall be acknowledged before a judge of a court of record or before an officer authorized by law to take acknowledgments. If the consent is acknowledged before a judge, it shall be the duty of the court to advise the consenting parent of the consequences of the consent, including the following:

  • Do you understand that your parental rights are not being terminated and you can be ordered to pay child support and medical support for your child?
  • Do you understand that to keep your rights, you must keep the court up to date about how to contact you?
  • Do you understand that if your child is ever placed for adoption, the court will try to let you know by using the information you have given them?
  • Do you understand that if you want information about your child's health or education, the court will send the information to the latest address the court has?
  • Do you understand that you may be able to have some contact with your child, but only if the permanent custodian decides it is in the child's best interests and if the court allows the contact?
  • Do you understand that unless the court orders differently, the permanent custodian has the right to make the following decisions about your child's care and consent to the child's marriage, medical treatment, mental health treatment, and make other critical health-care decisions?

Contents of a Guardianship Order

Citation: Ann. Stat. § 38-2272

When the court retains jurisdiction after appointment of a permanent custodian, the court, in its order, may impose limitations or conditions upon the rights and responsibilities of the permanent custodian including, but not limited to, the right to:

  • Determine contact with the biological parent
  • Consent to marriage; psychosurgery, removal of a bodily organ, or amputation of a limb; sterilization; behavioral and medical experiments; withholding life-prolonging medical treatment; placement in a treatment facility; or placement in a psychiatric hospital or an institution for the developmentally disabled

Modification/Revocation of Guardianship

Citation: Ann. Stat. § 38-2272

A parent's consent to custodianship is final when executed, unless the parent whose consent is at issue, prior to issuance of the order appointing a permanent custodian, proves by clear and convincing evidence that the consent was not freely and voluntarily given. The burden of proving the consent was not freely and voluntarily given shall rest with that parent.

Kinship Guardianship Assistance

Citation: Pol. & Proc. Man. § 6111

Children may be considered for a permanent custodianship subsidy if they are age 14 or older, are part of a sibling group that has one child age 14 or older who are being placed together, or have other extenuating circumstances that make adoption not a reasonable option.

The permanent custodianship subsidy is not an entitlement program, and the child must meet all of the following criteria:

  • The child is in the custody of the department with or without parental rights terminated at the time permanent custodianship is established.
  • A court has issued an order appointing a permanent custodian.
  • The child is not receiving Supplemental Security Income benefits.
  • The permanent custodian meets eligibility to receive Temporary Assistance for Families.

Links to Agency Policies

Kansas Department for Children and Families, Policy and Procedure Manual, click on '6000, Permanent Custodianship & Adoption'