Kinship Guardianship as a Permanency Option - New Jersey

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Definitions

Citation: Ann. Stat. §§ 3B:12A-2; 30:4C-84; Admin. Code § 3A:20-1.3

The term 'caregiver' means a person over age 18, other than a child's parent, who has a kinship relationship with the child and has been providing care and support for the child, while the child has been residing in the caregiver's home, for either the last 12 consecutive months or 15 of the last 22 months. 'Caregiver' also could include a resource family parent as defined in § 30:4C-26.4.

'Family friend' means a person who is connected to a child or the child's parent by an established, positive psychological or emotional relationship that is not a biological or legal relationship.

'Kinship legal guardian' means a caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood, and who is appointed the kinship legal guardian of the child by the court pursuant to § 3B:12A-1, et seq. A kinship legal guardian shall be responsible for the care and protection of the child and for providing for the child's health, education, and maintenance.

'Kinship relationship' means a family friend or a person with a biological or legal relationship with the child.

In regulation: The term 'relative' means any person, other than the child's parent, who is related to the child through blood, marriage, adoption, civil union, or domestic partnership, including a stepparent or a family friend.

Purpose of Guardianship

Citation: Ann. Stat. § 3B:12A-1

The legislature finds and declares that:

There is an increase in the number of children who cannot reside with their parents due to the parents' incapacity or inability to perform the regular and expected functions of care and support of the child.

An increasing number of relatives, including grandparents, find themselves providing care on a long-term basis to these children without court-approved legal guardianship status because the caregivers either are unable or unwilling to seek termination of the legal relationships between the birth parent and the child, particularly when it is the caregiver's own child or sibling who is the parent. In these cases, adoption of the child is neither feasible nor likely, and it is imperative that the State create an alternative, permanent legal arrangement for children and their caregivers. One such alternative arrangement, which does not require the termination of parental rights, is a court-awarded kinship legal guardianship that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver of certain parental rights, but retains the birth parents' rights to consent to adoption, the obligation to pay child support, and the parents' right to have some ongoing contact with the child.

In considering kinship legal guardianship, the State is seeking to add another alternative, permanent placement option, beyond custody, without rising to the level of termination of parental rights, for caregivers in relationships where adoption is neither feasible nor likely. Therefore, it is in the public interest to create a new type of legal guardianship that addresses the needs of children and caregivers in long-term kinship relationships.

A Guardian's Rights and Responsibilities

Citation: Ann. Stat. § 3B:12A-4

A kinship legal guardian shall have the same rights, responsibilities, and authority relating to the child as a birth parent, including, but not limited to:

  • Making decisions concerning the child's care and well-being
  • Consenting to routine and emergency medical and mental health needs
  • Arranging and consenting to educational plans for the child
  • Applying for financial assistance and social services for which the child is eligible
  • Applying for a motor vehicle operator's license
  • Applying for admission to college
  • Assuming responsibility for activities necessary to ensure the child's safety, permanency, and well-being
  • Ensuring the maintenance and protection of the child

A kinship legal guardian may not consent to the adoption of the child or a name change for the child. The birth parent of the child shall retain the authority to consent to the adoption of the child or a name change for the child.

The birth parent of the child shall retain the obligation to pay child support. The birth parent of the child shall retain the right to visitation or parenting time with the child, as determined by the court.

The appointment of a kinship legal guardian does not limit or terminate any rights or benefits derived from the child's parents, including, but not limited to, those relating to inheritance or eligibility for benefits or insurance.

Qualifying the Guardian

Citation: Ann. Stat. §§ 30:4C-86; 3B:12A-6

Prior to the submission of a petition for appointment as a kinship legal guardian, the caregiver and any adult residing in the caregiver's household shall undergo the following:

  • State and Federal criminal history records background checks
  • A domestic violence central registry check
  • A child abuse registry record check

In making its determination about whether to appoint the caregiver as kinship legal guardian, the court shall consider the following:

  • The potential kinship legal guardian's ability to provide a safe and permanent home for the child
  • The suitability of the kinship caregiver and the caregiver's family to raise the child
  • The ability of the kinship caregiver to assume full legal responsibility for the child
  • The commitment of the kinship caregiver and the caregiver's family to raise the child to adulthood
  • The results from the child abuse record check
  • The results from the criminal history records and domestic violence checks

In any case in which the caregiver petitioning for kinship legal guardianship, or any adult residing in the prospective caregiver's home, has a record of criminal history or a record of being subjected to a final domestic violence restraining order, the court shall review the record with respect to the type and date of the criminal offense or the provisions and date of the final domestic violence restraining order and make a determination as to the suitability of the person to become a kinship legal guardian. For the purposes of this paragraph, with respect to criminal history, the court shall consider convictions for offenses specified in § 30:4C-26.8(1)(c)-(e).

Procedures for Establishing Guardianship

Citation: Ann. Code §§ 3B:12A-5; 3B:12A-6

A petition for the appointment of a kinship legal guardian shall include a kinship caregiver assessment, which shall include certification from the caregiver that the caregiver has been providing care and support for the child, while the child has been residing in the caregiver's home, for at least the last 12 consecutive months.

In making its determination about whether to appoint the caregiver as kinship legal guardian, the court shall consider the following:

  • The best interests of the child
  • The kinship caregiver assessment
  • The recommendation of the Department of Children and Families, including any parenting time or visitation restrictions
  • The wishes of the child's parents, if known to the court
  • The wishes of the child if the child is age 12 or older, unless unique circumstances exist that make the child's age irrelevant

The court shall not award kinship legal guardianship of the child solely because of parental incapacity. The court shall appoint the caregiver as kinship legal guardian if, based upon clear and convincing evidence, the court finds that:

  • Each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable, or unwilling to perform the regular and expected functions of care and support of the child.
  • The parents' inability to perform those functions is unlikely to change in the foreseeable future.
  • In cases in which the department is involved with the child, (a) the department exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary, and (b) adoption of the child is neither feasible nor likely.
  • Awarding kinship legal guardianship is in the child's best interests.

Contents of a Guardianship Order

Citation: Ann. Stat. § 3B:12A-6

The court order appointing the kinship legal guardian shall specify, as appropriate, that:

  • A kinship legal guardian shall have the same rights, responsibilities, and authority relating to the child as a birth parent, as specified in § 3B:12-4 above.
  • The birth parent of the child retains the authority to consent to the adoption or a name change for the child.
  • The birth parent of the child retains the obligation to pay child support.
  • The birth parent of the child retains the right to visitation or parenting time with the child, as determined by the court.
  • The appointment of a kinship legal guardian does not limit or terminate any rights or benefits derived from the child's parents, including, but not limited to, those relating to inheritance or eligibility for benefits or insurance.

Modification/Revocation of Guardianship

Citation: Ann. Stat. §§ 3B:12A-4; 3B:12A-6

Kinship legal guardianship terminates when the child reaches age 18 or when the child is no longer continuously enrolled in a secondary education program, whichever event occurs later, or when kinship legal guardianship is otherwise terminated.

An order or judgment awarding kinship legal guardianship may be vacated by the court prior to the child's 18th birthday if the court finds that the kinship legal guardianship is no longer in the best interests of the child or, in cases where there is an application to return the child to the parent, based upon clear and convincing evidence, the court finds that the parental incapacity or inability to care for the child that led to the original award of kinship legal guardianship is no longer the case and termination of kinship legal guardianship is in the child's best interests.

In cases in which the department was involved, when determining whether a child should be returned to a parent, the court may refer a parent for an assessment prepared by the department, in accordance with regulations adopted by the commissioner.

An order or judgment awarding kinship legal guardianship may be vacated by the court if, based upon clear and convincing evidence, the court finds that the guardian has failed or is unable, unavailable, or unwilling to provide proper care and custody of the child, or that the guardianship is no longer in the child's best interests.

Kinship Guardianship Assistance

Citation: Ann. Stat. § 30:4C-90; Admin. Code §§ 3A:20-1.6

The Department of Children and Families operates a Kinship Navigator program, which is a referral service designed to help kinship caregivers coordinate the various government and community resources that may be available to them.

The program works to ensure that individuals who may be eligible to become kinship legal guardians are aware of the eligibility requirements for and the responsibilities of kinship legal guardianship, and that both individuals who may be eligible to become kinship legal guardians and current kinship legal guardians are aware of the services available to kinship legal guardians in the State.

In regulation: When kinship legal guardianship is the permanent plan for the child, the Division of Youth and Family Services (DYFS) will advise a relative interested in the legal guardianship subsidy program of the eligibility requirements.

A child is eligible for the legal guardianship subsidy program when:

  • A DYFS representative placed the child with a relative due to safety or risk of harm issues and DYFS had legal authority for placement through a court order.
  • The relative is related to the child through blood, marriage, adoption, civil union, or domestic partnership or is a family friend.
  • A DYFS representative made reasonable efforts when required to reunify the child and the parent.
  • The DYFS representative determines that the child cannot be returned to his or her parent and that adoption is neither likely nor feasible.
  • The relative or successor has obtained kinship legal guardianship, pursuant to the Kinship Legal Guardianship Act.
  • The relative's home meets the licensing standards for a resource family home for as long as the subsidy is paid.

Links to Agency Policies

New Jersey Department of Children and Families, Child Protection and Permanency Policy Manual, Vol. IV: Out-of-Home Placement, see chapter D, Kinship Legal Guardianship