Kinship Guardianship as a Permanency Option - Pennsylvania

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Definitions

Citation: Cons. Stat. Tit. 42, § 6302; Pol. # 3130-10-02/3140-10-03; Benchbook § 11.4

The term 'custodian' means a person other than a parent or legal guardian who stands in loco parentis to the child or a person to whom legal custody of the child has been given by order of a court.

In policy: 'Permanent legal custodianship (PLC)' is a permanency option for a child who is in the custody of the county agency and who is placed in substitute care.

A 'relative' is a person who is related by blood, marriage, or adoption within the fifth degree of kinship to the child, including great-great-great grandparents and first cousins once removed (children of first cousins).

The term 'kinship' encompasses those relationships that fall under Pennsylvania's current definition of kin that exists in other areas of practice and policy, including existing relationships with a child that meets at least one of the following:

  • A relative through blood, marriage, or adoption
  • A godparent as recognized by an organized church
  • A member of the child's Indian Tribe, nation, or clan
  • An individual with a significant, positive relationship with the child or family

An individual with a significant, positive relationship with the child or family would be a person who knew the child or family prior to the execution of the PLC agreement. This may include relationships established with a teacher, current or former resource parent, etc.

A 'subsidized permanent legal custodianship (SPLC)' is a permanent legal custodianship arrangement where a Federal, State, or county subsidy is provided to the custodian for the cost of providing care to a child.

In court rules: Legal custodianship in Pennsylvania is the equivalent of legal guardianship under the Social Security Act (42 U.S.C. § 675(7)) and is a formal legal arrangement that transfers custody of a minor child from the natural parent to a relative or other caregiver.

Purpose of Guardianship

Citation: Policy Bulletin # 3130-10-02/3140-10-03; Benchbook § 11.4

PLC is an available option for a child to achieve permanency. While it is not appropriate for all children, especially very young children, PLC may serve other children very well. For those children with strong bonds to parents who are unable to care for them, due to ongoing physical or behavioral health issues, or for older children who have been appropriately counseled about adoption and remain adamantly against it, permanency through placement with a permanent legal custodian may be the most optimal consideration, especially when the custodian is a relative, allowing the child to remain in his or her family system.

Parental consent is not required for a PLC and parental rights need not be terminated. When appropriate, the parent should be involved in the development of the child's placement, permanency, and visitation plan, as well as provide financial support.

In court rules: In the hierarchical scheme of permanency options, PLC is less desirable than reunification or adoption but preferable to permanent relative placement and another planned permanent living arrangements. It has a higher preference because it provides permanency and stability without ongoing State oversight, while often maintaining ties with siblings, extended family members, and the biological parents.

A Guardian's Rights and Responsibilities

Citation: Cons. Stat. Tit. 42, § 6357; Benchbook § 11.4

A custodian to whom legal custody has been given by the court under this chapter has the right to the physical custody of the child; the right to determine the nature of the care and treatment of the child, including ordinary medical care; and the right and duty to provide for the care, protection, training, education, and the physical, mental, and moral welfare of the child. An award of legal custody shall be subject to the conditions and limitations of the order and to the remaining rights and duties of the parents or guardian of the child as determined by the court. The court may award legal custody under this section on a temporary basis to an individual or agency under § 6351(a)(2) (relating to disposition of dependent child) or permanent basis to an individual under section 6351(a)(2.1).

In court rules: The legal custodian's rights and duties include the following:

  • The right and duty to make decisions on behalf of the child, including decisions regarding the child's travel, driver's license, marriage, and enlistment in the armed forces
  • The right to petition for child support from the child's parent
  • The obligation to pay legal expenses related to a parent's request to change custody or visitation

The parental rights and duties include the following:

  • The right to visitation when it does not affect the health and safety of the child
  • The right to petition for custody of the child
  • The right to pass on property to the child
  • The duty to pay child support

Qualifying the Guardian

Citation: Cons. Stat. Tit. 23, § 6344; Admin. Code Tit. 55, §§ 3700.66; 3700.67

The child-placing agency must have assessed the ability of the prospective guardian to provide a safe home for the child. The approval process must include conducting State and Federal criminal records checks and a check of the State child abuse and neglect central registry.

In regulation: A determination must be made that the home of the prospective guardian meets all relevant health and safety standards.

Procedures for Establishing Guardianship

Citation: Cons. Stat. Tit. 42, § 6351(a)(2.1)

If the child is found to be a dependent child, the court, subject to conditions and limitations as the court prescribes, may transfer permanent legal custody to an individual resident in or outside this Commonwealth, including any relative, who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child.

Contents of a Guardianship Order

Citation: Cons. Stat. Tit. 42, § 6351(a)(2.1)

A court order under this paragraph may set forth the temporary visitation rights of the parents. The court shall refer issues related to support and continuing visitation by the parent to the section of the court of common pleas that regularly determines support and visitation.

Modification/Revocation of Guardianship

Citation: Benchbook § 11.4

The legal custodianship order remains in place until a court terminates it or until the child is adopted, turns 18, or marries. When legal custodianship is set as the permanency plan goal, the court should make every effort to ensure the parties understand that the relationship is to be permanent and that a change in custody will not be made lightly.

Although the legal custodianship is considered permanent, it may be terminated with judicial approval, following the filing of a petition by the agency. (Because the grant of permanent legal custody closes the dependency case, however, this is technically a new proceeding.) The biological parent or the legal custodian also may file motions to have the legal custodianship terminated. Whether the petition is filed by the agency following a determination that the child is in danger, by a parent seeking the return of the child, or by a legal custodian wishing to be relieved of custodial responsibilities, the court must decide whether to continue or revoke the legal custodianship on the basis of the best interests of the child.

Kinship Guardianship Assistance

Citation: Policy Bulletin # 3130-10-02/3140-10-03

The Federal SPLC program provides subsidy support to relative/kinship permanent legal custodians to enable them to provide ongoing adequate and appropriate care for the child. For the child to be eligible for Federal subsidy, the child must:

  • Have been eligible for title IV-E foster care maintenance payments for 6 consecutive months while in placement with the relative/kinship caregiver
  • Have been in foster care with the relative/kinship caregiver who meets all of the Federal eligibility requirements for at least 6 consecutive months during the current custody episode
  • Have a strong bond with the relative/kinship caregiver
  • Have been consulted if age 14 or older
  • Be a child who is in county custody and who is the sibling of an eligible child and who is placed in the same custodian home

To be eligible for a Federal subsidy, the prospective guardian must:

  • Be an approved resource home, having met all of the requirements of Title 55 Pa. Code Chapter 3700 regarding foster family home approval and not be on provisional status
  • Have all clearances required for ongoing home approval up to date
  • Meet the definition of 'relative/kinship'

If the requirements for a Federal subsidy cannot be met, a State-funded subsidy may be considered. To meet State subsidy guidelines, the child must have lived, or be living, with the identified custodian for a total of 6 months, which need not be consecutive. To be eligible for a State subsidy, the guardian must:

  • Meet all of the requirements regarding foster family home approval
  • Have all clearances required for ongoing home approval be up to date
  • If already an approved resource parent, not be on provisional status

Links to Agency Policies

Pennsylvania Office of Children, Youth and Families Bulletin, Permanent Legal Custodian Policy (PDF - 212 KB)

Office of Children & Families in the Courts, Pennsylvania Dependency Benchbook, see chapter 11, Permanency Options.