Kinship Guardianship as a Permanency Option - New York
Definitions
Citation: Soc. Serv. Law § 458-a
A 'prospective relative guardian' is a person who has been caring for the child as a fully certified or approved foster parent for at least 6 consecutive months prior to applying for kinship guardianship assistance payments and to whom any of the following apply:
- Is related to the child through blood, marriage, or adoption
- Is related to a half-sibling of the child through blood, marriage, or adoption and the person also is the prospective or appointed relative guardian of such half-sibling
- Is an adult with a positive relationship with the child, including, but not limited to, a stepparent, godparent, neighbor, or family friend
A 'relative guardian' is a person who was appointed as a guardian or permanent guardian for a child after entering into an agreement with a social services official for the receipt of payments and services in accordance with this title.
Purpose of Guardianship
Citation: Fam. Crt. Act § 1089-a
In determining whether the best interests of the child will be promoted by the granting of guardianship of the child to a relative who has cared for the child as a foster parent, the court shall give due consideration to the permanency goal of the child; the relationship between the child and the relative; whether the relative and the local Department of Social Services have entered into an agreement to provide kinship guardianship assistance payments for the child to the relative, and, if so, whether a fact-finding hearing pursuant to § 1051 of this chapter has occurred; and whether compelling reasons exist for determining that the return home of the child and the adoption of the child are not in the best interests of the child and are, therefore, not appropriate permanency options.
A Guardian's Rights and Responsibilities
Citation: Fam. Crt. Act § 661
The permanent guardian of a child shall have the right and responsibility to make decisions, including issuing any necessary consents regarding the child's protection, education, care, and control; health and medical needs; and the physical custody of the person of the child, and may consent to the adoption of the child.
Qualifying the Guardian
Citation: Soc. Serv. Law § 458-b
A prospective relative guardian and any person age 18 or older living in the home of the prospective relative guardian who has not already been subject to a national and State criminal history record check as part of the process of the prospective relative guardian becoming a certified or approved foster parent must complete such a record check upon application for guardianship.
The social services official must inquire of the Office of Children and Family Services whether each prospective relative guardian and each person age 18 or older living in the home of the prospective relative guardian has been or is currently the subject of an indicated report of child abuse or maltreatment on file with the statewide central register of child abuse and maltreatment. If the prospective relative guardian or any other person older than age 18 residing in the home of the prospective relative guardian resided in another State in the 5 years preceding the application, a request must be made for child abuse and maltreatment information maintained by the child abuse and maltreatment registry from the applicable child welfare agency in each State of previous residence if such a request has not been made as part of the process of the prospective relative guardian becoming a certified or approved foster parent.
Procedures for Establishing Guardianship
Citation: Fam. Crt. Act §§ 661; 1089-a
When the permanency goal for a foster child is referral for legal guardianship, a petition shall be filed with the court by a fit and willing relative or other suitable person. The court presiding over the proceeding may consolidate the hearing of the guardianship petition with the dispositional hearing or permanency hearing, as applicable.
The court may issue an order of guardianship in response to a petition filed by a respondent parent, relative, or suitable person seeking guardianship of the child if:
- The court finds that granting guardianship of the child to the respondent parent, relative, or suitable person is in the best interests of the child and that the termination of the order placing the child in out-of-home care will not jeopardize the safety of the child.
- The court finds that granting guardianship of the child to the respondent parent, relative, or suitable person will provide the child with a safe and permanent home.
- The parents, the attorney for the child, the local department, and the person who has been the foster parent of the child for 1 year or more consent to the guardianship.
The court shall hold age-appropriate consultation with the child. If the youth has reached age 14, the court shall ascertain his or her preference for a suitable guardian. Notwithstanding any other section of law, when the youth is older than age 18, he or she shall consent to the appointment of a suitable guardian.
Contents of a Guardianship Order
Citation: Fam. Crt. Act § 1089-a
An order made in accordance with the provisions of this section shall set forth the required findings as described above. Notwithstanding any other provision of law, the court shall not issue an order of supervision nor may the court require the local department to provide services to the petitioner when granting guardianship.
Any order entered pursuant to this section shall conclude the court's jurisdiction over the proceeding, and the court shall not maintain jurisdiction over the proceeding for further permanency hearings.
Modification/Revocation of Guardianship
Citation: Fam. Crt. Act § 1089-a
As part of the order granting custody or guardianship to the relative or suitable person, the court may require that the local department and the attorney for the child receive notice of, and be made parties to, any subsequent proceeding to modify the order of custody or guardianship. If, however, the guardian and the local department have entered into an agreement to provide kinship guardianship assistance payments for the child, the order must require that the local department and the attorney for the child receive notice of, and be made parties to, any such subsequent proceeding involving custody or guardianship of the child.
Kinship Guardianship Assistance
Citation: Soc. Serv. Law § 458-b
A child is eligible for kinship guardianship assistance payments if the social services official determines the following:
- The child has been in foster care in the home of the prospective relative guardian for at least 6 consecutive months.
- Neither returning home nor adoption is an appropriate permanency option for the child.
- The child demonstrates a strong attachment to the prospective relative guardian, and the prospective relative guardian has a strong commitment to caring permanently for the child.
- Age-appropriate consultation has been held with the child:
- With respect to a child who is age 14 or older, the child has been consulted regarding the kinship guardianship arrangement.
- With respect to a child who is age 18 or older, the child has consented to the kinship guardianship arrangement.
- The first permanency hearing has been completed.
The financial status of the prospective relative guardian shall not be considered in determining eligibility for kinship guardianship assistance payments.
A prospective relative guardian who has been caring for an eligible foster child for at least 6 consecutive months and who intends to seek guardianship of the child may apply to the social services official who has custody of the child to receive kinship guardianship assistance payments, nonrecurring guardianship payments, and other applicable services and payments on behalf of the child. Applications shall only be accepted prior to issuance of letters of guardianship of the child to the relative guardian.
Links to Agency Policies
New York State Office of Children and Family Services: