What is a Kinship Legal Guardian?

Kinship Legal Guardianship is a legal procedure by which a caregiver is appointed to assume the role of a parent for a child living in their home. Kinship Legal Guardianship differs from adoption in that the legal relationship between the child and parent remains intact. The child does not lose contact with parents through a Kinship Legal Guardianship. The primary concerns are to establish permanency for the child, to protect the relationship between the child and parent and to allow the parent to retain some legal authority in the life of the child.
In a Kinship Legal Guardianship the Child is removed from the original family unit through the Division of Children and Family Services, or voluntarily placed with a kinship caregiver , either through trial reunification or voluntarily. In the vast majority of cases the Kinship Legal Guardian is a family member. Parents, siblings, grandparents, aunts, uncles, cousins and even close family friends can be Kinship Legal Guardians. A Kinship Legal Guardian is often the most appropriate long-term placement for children when parents are unable or unwilling to adequately fulfill parenting duties.
A Kinship Legal Guardianship is not an institution. Unlike foster care there is no government agency providing guardianship services. A Kinship Legal Guardian is simply a private person standing in the place of a parent to provide for the physical, financial and emotional well-being of the child.

Requirements for Kimship Legal Guardianship

The potential Kinship Legal Guardian must be a relative of the parent. If the parent is deceased, then the relative must be a blood relative. A non-blood relative is only eligible to become a Kinship Legal Guardian if they have a kinship with the child and reside with the child as a household member. In addition to kinsmanship, the relative also has to prove that they have cared for, and become a psychological parent to the child, as demonstrated by having exercised day-to-day care, custody and control for at least 12 months. Furthermore, no member of the household can have a criminal history that involves drug-related charges or sex-related charges. A person who has committed sexual assault, sexual contact or endangering the welfare of a child will not be allowed to become a potential Kinship Legal Guardian. The caretaking relative has to ensure that the Department of Children and Families has made reasonable efforts to place the child. They also have to show that granting kinship legal guardianship to them would be in the best interest of the child. At the presentation hearing, the Court will conduct an oral record inquiry of the relative. They will also determine whether the relative has sufficient knowledge of the child as well as their circumstances and any special needs of the child. The person in charge of the inquiry shall be a person that the Court appoints or directs, and has to conduct the inquiry in a manner that is most accessible to the caretaker relative, such as at their home.

How to Obtain Kinship Legal Guardianship?

To obtain kinship legal guardianship in New Jersey, the relative caregiver must initiate a guardianship action by filing a guardianship complaint with the Family Part of the Superior Court with jurisdiction over the matter. The kinship legal guardian would seek guardianship over the minor child. The filing party would attach supporting documents to the guardianship complaint such as payment records, income tax returns, proofs of residency, prepared Answers to guardianship questions, and criminal background checks.
Within twenty days of the filing of the guardianship complaint, the court, upon ex parte motion, would schedule a guardianship hearing, issue orders to direct that the required state and federal child abuse history background checks be completed, and order the parties to not remove the child from New Jersey, move the child out of state, or place the child in foster care, unless otherwise ordered by the court. Within ten days of the filing of the guardianship complaint, the moving party must serve the Action and a case information statement on the parties involved. After the action and case information statement are served upon the parties, and if the other requirements are fulfilled, the court will most often schedule a hearing date within twenty days. During that time period, the court would conduct a scheduled fact-finding hearing to determine whether the State should conduct a State Central Registry check and a federal/state criminal background check. At the hearing, the person seeking kinship legal guardianship would be required to produce his/her tax returns, a statement of annual wages and other income, and proof of residence in New Jersey. The parties will also provide a current income statement and any other evidence relevant to the financial status of the parties. All parties to a kinship legal guardianship must appear at the hearing. If a person fails to appear at the hearing or provide the required proof, the court shall not be required to schedule the State Central Registry check or federal/state criminal background check, until such time as the court orders otherwise.

Kinship Legal Guardianship Rights & Responsibilities

A Kinship Legal Guardian ("KLG") holds most of the rights and responsibilities of a parent under New Jersey law. The KLG’s specific responsibilities are as follows:

• To provide proper care, maintenance and nag of the child; KLG status carries with it a strict financial duty of support of the child. Support must be appropriate to the child’s needs and the financial resources of the KLG.
• To receive reasonable compensation for services rendered to the child, if the court has so provided; A KLG must maintain at least one-half of any compensation or reward received from any person other than the surrogate parent or a charitable organization for services rendered for or on behalf of the child. However, such a provision does not apply in the case of any payment by a governmental agency if the child is entitled to and would be eligible to receive similar benefits which are available to children in foster placement.
• To have the care, custody and control of the person of the child, but require reasonable visitation of the child by others, including grandparents and siblings;
• To determine the services necessary for the child, including ordinary medical, dental, vision, and health care services, and determine with whom the child will be aresided;
• To consent to ordinary medical, dental, vision, and health care services to be rendered to the child, and to make available to the child necessary care, including such specialized l treatment and health care services as may be required by the child’s physical or mental condition;
• To indenture or license the child;
• To obtain appropriate identity and travel documents, including a United States passport, for the child;
• To place the child with an adult custodian in a home of suitable and appropriate character when the KLG is not available to supervise the day-to-day care of the child or to care for the child. A KLG may designate, in a written instrument, a trusted person as the adult custodian with authority to provide or arrange for appropriate care and supervision of the child, and make educational and health decisions on behalf of the child until further order of the court, provided that the adult custodian is neither a parent nor a stepparent of the child, is at least 18 years of age, and is able to satisfactorily perform the duties of an adult custodian. The adult custodian may be compensated for services.
• To supervise the child’s education and, within the limits of the child’s program, to take steps necessary to ensure that the child attends school and receives necessary special education services;
• To employ and be paid for services by persons providing care, treatment and therapy to the child and for other services which the court may have approved;
• To appoint a guardian ad litem or legal guardian to act on behalf of the child whenever the KLG is unable to do so;
• To acquire and enforce insurance, trust or other funding to provide paying to ensure that it will be sufficient to finance the care and treatment of the child and the child’s needs at the time the KLG may no longer be able to perform the duties of a kinship legal guardian.
• To receive and manage money from sources outside of this State for the benefit of KLG child;
• At the time a decision is reached by the Division regarding the placement of the child, to provide the court with a list of individuals, consisting of at least three (3) names and addresses, whom the KLG would recommend as foster parents for the child and to file, at the time the application is filed, an affidavit certifying that said individuals are committed to assuming parental care for the child if adopted; and
• Any other powers conferred on a KLG by the court which are deemed necessary to provide for the care, custody, and control of the child.

Kinship Legal Guardianship Pros and Cons

While kinship legal guardianship has the potential to offer a child and the guardian a myriad of benefits, there are challenges that can impact all involved. From a child’s perspective, the obvious benefit of kinship legal guardianship is that it allows them to avoid long-term placement in a foster home or institutional facility. Kinship legal guardianship also goes a long way towards providing a child with a sense of normalcy. It helps the child avoid the stigma of being raised by strangers outside his or her family unit. And perhaps the best part is that a child placed with a guardian who they are familiar with enjoys a relationship with a loving caregiver who is invested in their well-being. A third benefit is that many families are eligible for subsidized kinship legal guardianship. In addition to receiving cash assistance, the guardian and child may be eligible for free or low-cost legal services, health insurance through Medicaid, child care subsidies and even funds for college education. From a prospective guardian’s point of view, by placing kinship legal guardianship on the child, he or she receives assurance that the child will remain with the guardian until their 18th birthday or graduates from high school, whichever occurs later. As a result, the guardian may receive SSI , Social Security or foster care benefits until the child reaches these milestones. Having assurance of the state’s commitment to the child’s well-being also may alleviate some of the fear parents have of raising someone else’s child. Not all is perfect when it comes to kinship legal guardianship. There are a number of issues that can present challenges. Some people find it unsettling to juggle the new legal duties and obligations that a guardian assumes. Moreover, while many families will receive cash assistance, not all families will. If the guardian and child do not receive an allowance, the financial burden will fall to the guardian. This may be challenging for some families. Some people also find it difficult to cope with the requirements of any sent for monitoring. Because the child is no longer in the custody of the Division of Child Protection and Permanency (the "Division"), the Division will continue to monitor the health, safety and education of the child. This includes periodic visits to the guardian’s home and maintaining regular contact with the guardian. In some circumstances, the Division may request to monitor the child’s health care needs and educational progress. Many people feel that these requirements are unfair and may be intrusive.

Useful Links & Help for Kinship Legal Guardians

There are several resources and support systems in place for kinship legal guardians in New Jersey. Unlike traditional adoptions, kinship legal guardianship is not overseen by the state Division of Child Protection and Permanency (DCP&P), but there are still financial assistance programs available to eligible guardians. In December 2018, DCP&P instituted a Kinship Legal Guardianship program that offers financial assistance to legal guardians of non-ward children, including guardians who are experiencing poverty and other financial hardships. In order to receive this assistance, there must be a child support order entered in the Family Court (this can occur simultaneously with the legal guardianship). The Kinship Legal Guardianship program can specifically assist with: Counseling services are also available to guardians and their families to help everyone cope with the psychological effects of potential trauma in the recent past or present, as well as to deal with loss and the feelings associated with the legal guardianship. The National Association of Counsel for Children (NACC) offers a number of resources and support for both kinship legal guardians and the children under their care. The NACC provides national networking opportunities and a wealth of education on trauma-informed practice and other treatment and advocacy resources. They also offer free national and regional conference calls to talk about policy issues, such as the legal issues with the electronic service of court forms. Statewide community organizations are also available to guardians, such as Family Support Organization (FSO)—which provides support to families dealing with emotional and behavioral problems with their children—and Kinship Navigator, which provides free and confidential information for legal guardians in regards to schools, housing, medical care, medical and financial benefits, as well as food assistance.

Kinship Legal Guardian Legal Issues

Navigating a New Jersey kinship legal guardianship is a complex process involving the intersection of multiple bodies of law. Kinship legal guardianship arises in the context of both family law and child welfare. Additionally, Kinship legal guardianship does not terminate the parental rights of the children involved and prospective resources guardians have to seek the permission from the biological parents to enter into a kinship legal guardianship arrangement. The family court has to make a decision regarding whether a guardianship should actually be granted. These layers of legal proceedings all combine to make the involvement of an experienced and knowledgeable family law attorney a key element of the process. This is why anyone interested in pursuing a kinship legal guardianship should consult with an experienced family law attorney in New Jersey.
In some situations , those seeking to enter into a kinship legal guardianship arrangement may qualify for assistance from one of the many different legal aid services available in New Jersey. Legal aid services can provide needed assistance based on income or other circumstances. For example, Legal Services of New Jersey is an organization that focuses on helping low-income NJ residents with a variety of legal matters. The group’s attorney’s can provide representation for adults and children in various family law matters, including kinship legal guardianship.