What is Kinship Legal Guardianship?
Kinship legal guardianship is a type of guardianship in which a child legally vests in an adult (believed to be a blood relative) who has been appointed by a court to act in a permanent, stable, parental-like capacity for the child. The adult who is appointed as guardian of the child is appointed as the kinship legal guardian and is responsible for all aspects of the child’s life and care, including education, health-care and religious instruction. The kinship legal guardian receives some financial benefits for acting in this capacity, including a monthly stipend, free health benefits, and additional financial assistance for higher education. Unlike adoption, kinship legal guardianship does not sever the parental rights of the child’s biological parents. However, the child is not returned to the custody of the child’s natural parents while the guardianship remains in effect.
The biggest difference, conceptually between a kinship legal guardianship and an adoption, is that an adoption is a complete cutting of any prior parental rights . If you think of a family tree, in an adoption case, a cutting of the roots of the tree takes place and a new "parent" grows from the root system of the new adoptive family. In a kinship legal guardianship, however, it is more like a scab over the old wound that allows all parties to heal around the scab. In the case of a well executed guardianship, the wound can heal completely, but the scab must stay in place and as such the gate to the roots of the family tree must remain slightly open to the people at the base of the tree so that nothing has to be cut off for the benefit of the child.
The termination of a kinship legal guardianship follows a different path than that of an adoption. A kinship legal guardianship can be permanantly terminated upon the petition of the biological parents of the child with or without cause shown to the Court. If the appointment of the guardian is found to be inappropriate under the circumstances of the case, the Court may suspend, dissolve or pass over the appointment of the guardian.
Who is Eligible for Kinship Legal Guardianship in NJ?
To be eligible to obtain kinship legal guardianship, the child must be living with the person who wishes to obtain KLG. The parties do not have to be related, however, the caretaker must be a relative. A relative is defined for purposes of KLG as a sibling, grandparent, aunt, uncle, niece, nephew, stepparent, step-sibling, first cousin and next of kin of a spouse and any other person related by blood or affinity whose close association with the child is equivalent to a family relationship. In addition, the child must be under the care and custody of the Division of Child Protection and Permanency (DCPP) for at least 12 consecutive months immediately preceding the filing of the kinship legal guardianship complaint. There are some exceptions for these requirements. For instance, if the parents are deceased or the child is emotionally or physically neglected as a result of an act or acts by the child’s parents sexually harming the child, or relating to the drug or alcohol abuse by the parents, the 12 month requirement may not be applicable.
It is important to note that in Kinship Legal Guardianship matters, the the parents of the child are not parties to these proceedings.
Benefits of Kinship Legal Guardianship
KLG is a tremendous benefit for many families. It is the KLG that gives legal permanence to the relationship between the adult relative and the child. The adult relative thus obtains the legal right to care for the child, including the right to make most life decisions for the child, and the child will have legal rights and benefits that other children have. The KLG options provides the child with financial stability. Health insurance, Social Security, SSI, Medicaid benefits may be available to qualified families. Child support is also available to some families. Guardians will not have some of the same responsibilities as biological parents. For example, almost all child support obligation will be waived, and guardians may choose whether to pay child support to the biological parent. KLG is an important benefit in the face of continuing economic instability. It provides stability for children who suffer when they are moved from family to family in the foster care system.
Application Process for KLG in New Jersey
The application process for kinship legal guardianship in New Jersey is relatively straightforward, although it does require familiarity with legal procedures and the completion of requisite paperwork. You’re advised to obtain the legal assistance of an experienced NJ kinship lawyer prior to filing your initial petition and supporting documentation.
The first step in the process is filing a petition for KLG with the New Jersey court. A parent is not required to consent to the guardianship. If necessary, the court can elect to forgo the prerequisite of parental consent in the interest of the child. After the filing of the petition, a "name search" is conducted with the purpose of determining whether the child has any other relatives that could serve as a potential guardian. A date for a removal hearing will then be set. In addition to the petition, you must also file the following forms: Some or all of the following forms may also be required by your particular court: Again, an experienced NJ kinship lawyer can provide you with advice regarding the exact forms you’ll need to submit for your case.
After the removal hearing is conducted, the court will set a date for a hearing with regard to the KLG application. At this hearing, the court will examine whether appointing a guardian would be in the best interests of the child. The court will then decide either to grant or deny the KLG, and enter a KLG order if the application is approved. The KLG appointment with the surrounding stipulations will then take effect, and the guardian will possess many of the same rights and responsibilities of a parent, without technically truing to terminate the parental rights of a child’s mother or father.
Challenges and Considerations With KLG
While the KLG process can provide a sense of stability for both the child and the guardians, there can be a number of challenges and considerations that all parties involved should be aware of. For example, there may be special educational or medical needs to consider. Sometimes the home of the applicant will need to be modified or outfitted to accommodate a specific child’s disability. As such, many applicants find that they spend additional funds to make upgrades in the home. There may also be legal considerations to examine. The consent of the biological parents are needed before the KLG can take full effect. If a biological parent has certain parenting time rights those may also need to be addressed . It may be possible that a biological parent will refuse to consent to the guardianship in order to retain some parental rights. Because of this, it is often recommended that the case be handled by an experienced Family Law attorney who is familiar with KLG issues. There is also the matter of support and benefits to consider. These questions can be further complicated when the biological parent has a criminal record that interferes with his/her ability to pay child support or if the biological parent wishes to avoid paying his or her child support obligations because of the KLG. Medicaid may also be an important consideration to address.
Support and Resources for Kinship Guardians
The New Jersey Department of Human Services Division of Family Development and the New Jersey Department of Children and Families have partnered to include Kinship Legal Guardians and their children in the NJ SNAP (formerly food stamp) program. This includes eligibility with no asset limit and a monthly allotment of up to $509 per month for a family of four (as of 2010) that is automatically adjusted every year according to inflation. You may request additional funds on your application for special needs such as school supplies, health insurance copayments, childcare, and extracurricular activities. Available funds are released in the summer.
The State also pays an additional $450 per child who receives Kinship Legal Guardianship Subsidy and who lives with the Kinship Legal Guardian. In addition to government assistance, there are many support groups available for kinship guardians in New Jersey online and in person. The American Association of Retired Persons (AARP) has chapters in nearly all New Jersey counties that offer support groups for kinship guardians and their children. There is also Kinship Legal Guardianship Network Support Groups offered throughout New Jersey. If there is no support group in your County, Kinship Legal Guardianship Network will assist in facilitating a local support group. They also offer members direct access to their staff with questions or concerns. Additionally, Kinship Legal Guardianship Network has an active Facebook page that provides information and support to kinship families. Legal Aid is always available to anyone in New Jersey who cannot afford legal representation. Legal Aid provides counsel and advice, brief service and in some cases full representation to its clients. Legal Aid can make referrals to other community support agencies that may be of assistance children of Kinship Legal Guardians. In addition, Legal Aid can make referrals to other Government Agencies who may offer financial assistance and services.
Frequently Asked Questions About Kinship Legal Guardianship
1. Who can be appointed as a Kinship Legal Guardian?
A KLG can be appointed to a child whose parents are unable to care for them such as a parent incarcerated, incarcerated, institutionalized, sent to another country, or suffers serious substance addiction issues. Typically, a relative will file the Kinship Legal Guardianship such as a grandparent, aunt, or uncle. The can appoint a KLG as an alternative to having the child adopted.
2. Does a prospective KLG need to reside in New Jersey?
No, the Kinship Legal Guardian does not have to live in New Jersey. According to the law, the KLG may live anywhere provided they pass the necessary criminal background checks, home study, and other core requirements.
3. How does a Kinship Legal Guardianship differ from adoption?
Unlike an adoption, KLG is a flexible substitute parental arrangement that allows the child’s biological parents to retain their parental rights . A parent can later seek to terminate a Kinship Legal Guardianship, whereas an adoption is forever.
4. Does the KLG statute grant guardianship over the parent’s rights as well?
The KLG statute removes the right of the parent to determine the child’s place of residence but not the ability to communicate with the child. The KLG does not terminate a parent’s rights to care for the child if and when the parent’s circumstances improve enough for them to potentially assume caretaking duties for the child once again.
5. Is the State still obligated to financially support the child under a KLG?
Yes, the State will still provide a stipend for the child under the supervision of Corporations for Childrens’ Services (DCF).
6. Can the initial KLG be revoked for another relative or family member?
Yes, either parent may seek to have a Kinship Legal Guardianship terminated or modified.