My one year old nephew is in care and I'm trying to find out…

Relative Kinship Care Options in New York

Sometimes children need to be placed in the care of a relative because they cannot stay in the home with their parents. Concerns about the child’s safety, or other reasons, may lead to the child’s relatives being asked if they can provide a temporary, safe, stable, and nurturing home for the child.

When the local child welfare agency decides to remove a child from the home, the agency must notify relatives and ask if they are interested in caring for the child. In New York State, the child welfare agency is usually the county Department of Social Services (DSS). In New York City it is known as the Administration for Children’s Services (ACS).

Who is Considered “Kin” in New York?

A relative within the second or third degree to the child’s parent(s) or stepparent(s) refers to those relatives who are related to the parent(s) or stepparent(s) through blood or marriage either in the first, second, or third degree in the kinship line. A relative within the second or third degree of a parent includes the following:

• Grandparents of the child
• Great-grandparents of the child
• Aunts and uncles of the child, including the spouses of the aunts or uncles
• Siblings of the child
• Great-aunts and great-uncles of the child (including the spouses of the great-aunts or great-uncles)
• First cousins of the child (including the spouses of the cousins)
• Great-great grandparents of the child,
• An unrelated person where placement with such person allows half-siblings to remain together in an unapproved foster home, and the parents or stepparents of one of the half-siblings is related to such person in the second or third degree.

Custody versus Guardianship in New York State

Courts in New York State have been granting Custody (also known V-Docket or Article 6 of the Family Court Act) and Guardianship (also known as G-Docket or Article 17 of the Surrogate’s Court Procedure Act) to individuals as if they were the same. They are similar but they are not interchangeable.

Persons with legal custody or legal guardianship share some rights such as the authority to enroll the child in school and to enroll and receive coverage for the child in the person’s employer-based health insurance.

Persons with guardianship have enhanced legal authority over the child such as the right and responsibility to make decisions and to issue any necessary consents regarding the child’s protection; education; care and control; and health and medical needs.

With both Custody and Guardianship, the child’s parent(s) still has parental rights and may seek visitation with the child or may later file a petition to regain guardianship/custody of the child. Custody and Guardianship are not considered permanent and can end when either of the child’s parents asks the court to return legal custody to them. However, the court must hold a hearing to determine whether the circumstances which convinced the court to change custody of the children from the parents to another family member have changed. If the court decides that circumstances have changed, they court must also decide whether it is now in the best interest of the child to be returned to the parents

When You Are Asked to Care for Another’s Child

New York State allows children to be temporarily placed in the home of a relative while the relative decides on an option. However, local child welfare agency and court practices may not favor placement with a relative until an option is chosen. When a relative decides not to care for a child, the child may be placed with another relative or with unrelated foster parents. It is best for the children involved to have kinship caregivers step up and be part of their permanency planning as soon as possible. If the parents’ rights are later terminated, the child may be freed for adoption. The person with whom the child has been living for the past 12 months is often preferred as the adoptive parent by the courts. It’s also disruptive for the child to have another move and placement which adds to their trauma. In all cases the agency and the court will need to know that the relative’s home is safe and that the relative is a suitable person to become a caregiver for the child.

When an agency contacts the relatives of a child in need of care, the agency must inform the relatives of their options which generally include direct placement, legal custody or guardianship and kinship foster care.

Any relative who is thinking about caring for a child should thoroughly explore all available options and ask informed questions to determine the choice that is best for them.

Kinship Placement Options

It’s important that relatives fully understand their options and the level of support and obligations that come with each option. Decisions made at the onset when child welfare is first involved will impact the future placement or permanency options available to them. Relatives need to consider the needs of the child and whether or not they will need additional support to adequately care for the child or if they have the resources to care for the child on their own.

The Kinship Guardianship Assistance Program (KinGAP) is designed for a foster child to achieve a permanent placement with a committed adult who had been the child’s foster parent for at least six months. This program provides financial support and in most cases medical coverage for the child, beginning with the child’s discharge from foster care to the guardian. The level of financial support is similar to the maintenance payments received while the child was in foster care.

Process

In addition to being the child’s foster parent for at least six months, the prospective guardian must be:

• related to the child by blood, marriage or adoption, and the relationship can be to any degree of affinity, or
• related to a half sibling of the child by blood, marriage or adoption (to any degree of affinity) and is also seeking to become, or is, the guardian of such half sibling through KinGAP, or
• an adult with a positive relationship to the child that was established prior to the child’s current foster care placement.

The family can have a single parent or two parents. The family may have birth children, adoptive children, or no other children. Families can vary by age, income, lifestyle, and marital status. A KinGAP family must have a strong commitment to caring for the child on a permanent basis.

The foster child must have a strong attachment to the prospective guardian. The child must be consulted if age 14 or over. If age appropriate, younger children should be consulted as well. The child must consent if age 18 or over.

The foster child does not have to be free for adoption in order for Kinship Guardianship Assistance to be provided. However, both “return home” and “adoption” must be ruled out as permanency options for the child. The foster child’s caseworker will be working with the child’s birth family and prospective guardian to explore other permanency options or determine that there are compelling reasons for the child not to return home or be adopted.

Because, as stated above, the child’s parental rights need not be terminated to achieve Kinship Guardianship Assistance, the legal process from application to finalization can be considerably shorter than freeing a child and legalizing an adoption.

The KinGAP requires that agencies must check with the New York State Child Abuse and Maltreatment Register (and other states’ comparable registries if adults in the home lived in any other states in the last five years) to determine whether the proposed guardian, or any person age 18 or over who resides in the home, has previously abused or maltreated a child. Also, a state and national (with the FBI) criminal history check for a proposed guardian, or any other person age 18 or over who is currently residing in the home, is required. Since these requirements were met when the foster home was initially certified or approved, they are considered having been met for the KinGAP. An indicated report of abuse or maltreatment or a criminal record does not necessarily prevent Kinship Guardianship Assistance.

The foster parent must apply for the KinGAP to the local department of social services (LDSS) that has custody of the child and enter into an agreement with the LDSS. This KinGAP agreement will include the details of the financial assistance and medical coverage to be provided, including the monthly amount of assistance, how payment will be made, how payments may be adjusted, and additional services and benefits for which the guardian and child may be eligible. Some of these services and benefits include: payment to the guadian of up to $2,000 for expenses the guardian might need to pay for legal services like attorney’s fees connected to obtaining guardianship, and for the child, education and training vouchers, up to $5,000 per year for college or vocational training costs, depending on availability.

In order for KinGAP eligibility to be established, the case must have completed certain court hearings (a fact finding hearing for certain children who have been removed and a first permanency hearing for all children in foster care) before the agreement can be approved by the LDSS. After the agreement is approved, a guardianship petition must be filed with the court and the court must issue letters of guardianship.

Payments start once the letters of guardianship are issued. Assistance may continue until the child reaches the age of 18 or 21, as long as the guardian remains legally responsible for the child and continues to provide support for the child.

If the family moves out of New York State after the foster parent assumes guardianship, the assistance will continue and the agreement will contain information on continuing medical coverage in the new state of residence.

KinGAP in New York State is governed by various provisions of Social Services Law, Surrogate’s Court Procedure Act and New York State Family Assistance regulations. A fair hearing is available for families who seek to challenge the decision of an agency; for example, if the application is denied or not acted upon.

When Kinship Guardianship Assistance is in place, the guardian can make all necessary decisions for the child, including medical and educational decisions. For a child not free for adoption, parental rights are still retained by the birth parents. The child may maintain contact with the parents, including visits, if appropriate to the circumstances. The agency's supervision is no longer required.

There may be times when the family needs assistance after kinship guardianship is in place. Supportive services are available around the state through a network of Kinship Programs. A listing of these programs can be found on the Kinship Services page and through the Navigator website at nysnavigator.org or by calling 1-***-***-****. Services may include family and individual counseling, support groups, legal information, youth development and referral services.