Kinship Guardianship as a Permanency Option - Virginia

Date: July 2018


Citation: Ann. Code §§ 16.1-228; 63.2-100

'Permanent foster care placement' means the place of residence in which a child resides and in which he or she has been placed pursuant to the provisions of §§ 63.2-900 and 63.2-908 with the expectation and agreement between the placing agency and the place of permanent foster care that the child shall remain in the placement until he or she reaches the age of majority, unless modified by court order or unless removed pursuant to § 16.1-251 or 63.2-1517. A permanent foster care placement may be a place of residence of any natural person or persons deemed appropriate to meet a child's needs on a long-term basis.

A 'kinship guardian' is the adult relative of a child in a kinship guardianship established in accordance with § 63.2-1305 who has been awarded custody of the child by the court after acting as the child's foster parent.

The term 'kinship guardianship' means a relationship established in accordance with § 63.2-1305 between a child and an adult relative of the child who has formerly acted as the child's foster parent that is intended to be permanent and self-sustaining, as evidenced by the transfer by the court to the adult relative of the child of the authority necessary to ensure the protection, education, care and control, and custody of the child and the authority for decision-making for the child.

The 'Kinship Guardianship Assistance Program' is a program consistent with 42 U.S.C. § 673 that provides, subject to a kinship guardianship assistance agreement, payments to eligible individuals who have received custody of a relative child of whom they had been the foster parents.

Purpose of Guardianship

Citation: Ann. Code §§ 63.2-900.1; 63.2-908; 63.2-1305

When a child has been removed from his or her home, the local board shall, in accordance with regulations adopted by the State Board of Social Services, determine whether the child has a relative who is eligible to become a kinship foster parent.

A court shall not order that a child be placed in permanent foster care unless it finds that (i) diligent efforts have been made by the local department to place the child with his or her natural parents and such efforts have been unsuccessful, and (ii) diligent efforts have been made by the local department to place the child for adoption and such efforts have been unsuccessful or adoption is not a reasonable alternative for a long-term placement for the child under the circumstances.

The Kinship Guardianship Assistance Program is established to facilitate placements with relatives and ensure permanency for children for whom neither adoption nor being returned home is an appropriate permanency option.

A Guardian's Rights and Responsibilities

Citation: Ann. Code § 63.2-908

Unless modified by the court order, the foster parent in the permanent foster care placement shall have the authority to consent to surgery, entrance into the armed services, marriage, application for a motor vehicle and driver's license, application for admission into college, and any other such activities that require parental consent and shall have the responsibility for informing the placing department or agency of any such actions.

Qualifying the Guardian

Citation: Ann. Code §§ 63.2-900.1; 16.1-278.2; 16.1-278.3

Kinship foster care placements shall be subject to all requirements of, and shall be eligible for all services related to, foster care placement. Subject to approval by the Commissioner of Social Services, a local board may grant a waiver of the board's standards for foster home approval, set forth in regulations, that are not related to safety. Waivers granted pursuant to this subsection shall be considered and, if appropriate, granted on a case-by-case basis and shall include consideration of the unique needs of each child to be placed. Upon request by a local board, the commissioner shall review the local board's decision and reasoning to grant a waiver and shall verify that the foster home approval standard being waived is not related to safety.

Any order transferring custody of the child to a relative or other interested individual shall be entered only upon a finding, based upon a preponderance of the evidence, that the relative or other interested individual is one who, after an investigation as directed by the court, (i) is found by the court to be willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect; and the order shall so state.

Procedures for Establishing Guardianship

Citation: Ann. Code §§ 16.1-278.2; 16.1-278.3; 63.2-908

The court shall hold a dispositional hearing within 60 days of an order removing a child from his or her home. If at the hearing the child is found to be (a) abused or neglected; (b) at risk of being abused or neglected by a parent or custodian who has been adjudicated as having abused or neglected another child in his or her care; or (c) abandoned by his or her parent or other custodian, or without parental care and guardianship because of his or her parent's absence or physical or mental incapacity, the court may order a transfer of legal custody to a relative or other interested individual.

Any order terminating parental rights shall be accompanied by an order (i) continuing or granting custody to a local board of social services or to a licensed child-placing agency, or (ii) granting custody or guardianship to a relative or other interested individual.

A local department or a licensed child-placing agency shall have authority pursuant to a court order to place a child who is age 16 or older over whom it has legal custody in a permanent foster care placement in which the child shall remain until attaining majority or thereafter, until age 21, if such placement is a requisite to providing funds for the care of such child, so long as the child is a participant in an educational, treatment, or training program approved pursuant to regulations of the board.

Contents of a Guardianship Order

Citation: Ann. Code §§ 16.1-278.2; 16.1-278.3; 63.2-908

The court's order transferring custody to a relative or other interested individual should provide for, as appropriate, any terms or conditions which would promote the child's interest and welfare, ongoing provision of social services to the child and the child's custodian, and court review of the child's placement.

When a child has been placed in a permanent foster care placement, and if the child has a continuing involvement with his or her natural parents, the natural parents should be involved in the planning for a permanent placement. The court order placing the child in a permanent placement shall include a specification of the nature and frequency of visiting arrangements with the natural parents.

Modification/Revocation of Guardianship

Citation: Ann. Code §§ 63.2-900.1; 63.2-908

A child placed in kinship foster care shall not be removed from the physical custody of the kinship foster parent, provided the child has been living with the kinship foster parent for 6 consecutive months and the placement continues to meet approval standards for foster care, unless (i) the kinship foster parent consents to the removal, (ii) removal is agreed upon at a family partnership meeting as defined by the Department of Social Services, (iii) removal is ordered by a court of competent jurisdiction, or (iv) removal is warranted pursuant to § 63.2-1517.

No child shall be removed from the physical custody of the foster parents in the permanent care placement except upon order of the court or pursuant to § 16.1-251 or 63.2-1517. The department or agency so placing a child shall retain legal custody of the child.

Any change in the placement of a child in permanent foster care or the responsibilities of the foster parents for that child shall be made only by order of the court that ordered the placement pursuant to a petition filed by the foster parents, local department, licensed child-placing agency, or other appropriate party.

Kinship Guardianship Assistance

Citation: Ann. Code § 63.2-1305

A child is eligible for kinship guardianship assistance program if:

  • The child has been removed from home pursuant to a voluntary placement agreement or as a result of a judicial determination that remaining in the home would be contrary to the child's welfare.
  • The child was eligible for title IV-E or State foster care maintenance payments while residing for at least 6 consecutive months in the prospective kinship guardian's home.
  • Being returned home or adopted is not an appropriate permanency option for the child.
  • The child demonstrates a strong attachment to the prospective kinship guardian, and the prospective kinship guardian has a strong commitment to caring permanently for the child.
  • If the child is age 14 or older, the child has been consulted regarding the kinship guardianship.

If a child does not meet the above criteria but has a sibling who does meet the criteria, the child may be placed in the same kinship guardianship with his or her eligible sibling, if the local department and kinship guardian agree that such placement is appropriate. In such cases, kinship guardianship assistance may be paid on behalf of each sibling.

In order to receive payments, the local department and the prospective kinship guardian shall enter into a written kinship guardianship assistance agreement that includes the following:

  • The amount of the assistance payment and the manner in which the payment may be adjusted periodically, on the basis of the circumstances of the kinship guardian and the needs of the child
  • The additional services or assistance, if any, for which the child and kinship guardian will be eligible
  • The procedure by which the kinship guardian may apply for additional services, as needed
  • Assurance that the local department shall pay up to $2,000 of the total cost of nonrecurring expenses associated with obtaining kinship guardianship of the child

Links to Agency Policies

Virginia Department of Social Services, Child and Family Services Manual, section E(10), Achieving Permanency Goal: Custody Transfer to Relatives (PDF - 437 KB)