In many cases, kinship caregivers are not represented by an attorney and often have to make legal decisions on their own. While the KCRC always recommends seeking the opinion of a legal professional about your specific situation, there are some things you can do on your own to make the legal processes associated with kinship care more manageable.
Know your Legal Status
While all kinship caregivers provide for and raise the children in their life, doing so can take on many different legal forms. Knowing what legal status you have is important for several reasons, including determining what services you are eligible for and what rights you have as a caregiver in the eyes of the court. You may find this document, Kinship Caregiving Options: Considerations for Caregivers, useful in determining your legal options. As a caregiver, you may have one of the following legal relationships with the minor child:
- Informal Kinship
This means that the child came to live with you without any court involvement or involvement from the Department of Human Services. The child’s biological parent has left the child with you voluntarily or abandoned the child with you and you have no paperwork that gives you authority to care for the child or plan for the child.
- Power of Attorney
Parents can sign a Power of Attorney document to give the caregiver the ability to make decisions on behalf of the child, such as consent to medical treatment. An example of a Power of Attorney form can be found here.
- Limited Guardianship
A limited guardianship is an agreement between the parent and caregiver to give over temporary legal guardianship of the child. Only the custodial parent of the child can request a limited guardianship. Filed in the probate court, a limited guardianship will include a set of conditions called a limited guardianship placement plan. The child’s parent(s) will need to petition the court to end the guardianship. Guardians have the ability to make decisions on behalf of the child.
- Full Guardianship
Full guardianships generally have the same legal benefits as limited guardianships, but they differ in that they can be entered into without the parent(s)’ permission or agreement and are typically with the expectation that the guardian will be caring for the child for an extended period of time or until he or she turns 18 years old. Caregivers that are caring for a child without having any type of legal arrangement can file a motion to become the guardian at the probate court.
Having custody of a child gives a caregiver legal rights and responsibility over the child. Custody can be awarded to a caregiver through family court, and it remains unless the court enters a new order or the child turns 18. Parents can sign a contract giving custody over to another consenting adult, or custody can be awarded to a caregiver through a court proceeding. To find out more about custody click here.
- Licensed Relative Foster Care Provider
Being a licensed relative foster care provider means that you have had a child placed with you by the Department of Health & Human Services (MDHHS) or one of its contracted agencies and that you have gone through the licensing process, which includes receiving a certain number of hours of training, a review of your housing to make sure it meets licensing standards, and a review of your personal life to ensure that you are of “good moral character.” Licensed foster care providers receive a stipend from the state to help care for the child and have responsibilities related to the care and supervision of the child.
- Unlicensed Relative Foster Care Provider
Occasionally it is possible for a caregiver to be an unlicensed relative foster care provider. This requires a waiver of the licensing rules that is approved by the Department of Human Services. Unlicensed relative foster care providers are not required to go through training and have a modified set of requirements they have to meet regarding their housing (safety of the child must still be assured). These caregivers must still meet the same care and supervision requirements of the state and as of 4/1/2019, they are eligible for a monthly stipend. To learn more about the role of relative foster caregivers both licensed and unlicensed, click here.
Adoption is the process of gaining permanent legal custody of a child. A parent may be consenting to this adoption, or the parent’s rights have been terminated by the court and adoption by the caregiver is seen as in the child’s best interest. The Department of Human Services typically assists with adoptions that are related to child welfare. Outside of the child welfare system, it is highly recommended that caregivers engage the assistance of a lawyer. An adoptive caregiver is seen fully as the “parent” for legal matters.
Filing to Change Legal Status
Individuals that are looking to file a motion for guardianship or custody can do so in the court that has jurisdiction over where the child currently resides. Typically that will mean filing in your county’s court. Guardianships are handled through the probate court, while other matters are typically handled in the circuit court’s family division. If you are unsure where or what you are looking to file, a court clerk can typically assist you with your specific questions.
Fees are common when filing a motion with the court. Individuals having trouble covering the costs of these fees can request that they be waived. The filer will need to fill out a waiver request with the court in order to do this. This form can be picked up in person or found online here.
Below you will find links to some of the most important and commonly used guardianship forms. To avoid having to pay a fee for getting various forms from the court, you can click on the link to the appropriate court form and print it out.
- Petition for Appointment of Limited Guardian of Minor (pc650)
This form is the one that will be filed with the court in order to petition for Limited Guardianship of a minor child when the parent(s) are making the request. The parent will be asked to provide names, birthdays, and addresses of the individuals involved in the guardianship (parents, child, appointed guardians). This form requires that the parent provide information on the interested parties, request for a specific individual to be appointed as guardian of the child, and consent to the suspension of their parental rights.
- Limited Guardianship Placement Plan (pc652)
This form will go along with the Petition for Appointment of Limited Guardian of Minor (pc650). Using this form, the parent(s) as well as the appointed guardian(s) of the child will work together to come up with a plan for the guardianship. The reasons a limited guardianship is being requested, parental visitation schedule, parent’s financial support, and the things that must happen in order for the guardianship to end (i.e. the parent is no longer incarcerated, they complete their GED, etc.) are areas that will be addressed in this form that both parties must agree upon and agree to complete.
- Petition for Appointment of Guardian of Minor (pc651)
The Petition for Appointment of Guardian of Minor is the form that will be filed with the court in order to petition for Guardianship of a minor. This can be done without the parent(s) agreement or consent (although they will be notified). Like the petition for a Limited Guardianship, this form will ask for information on all parties involved, reasons why the child is in need of a guardian, and request of a specific individual(s) to be appointed guardian.
- Minor Guardianship Social History (pc670)
The Minor Guardianship Social History form will be filed with the court along with the Petition for Appointment of Guardian of Minor (pc651). This form asks for information regarding the child, parent(s), and the purposed guardian(s). There is a section for the purposed guardian(s) to fill out regarding the reasons a guardianship is needed, the parent(s) level of agreement, the home in which the child will reside in if the guardianship is granted, etc.
- Annual Report of Guardian on Condition of Minor (pc654)
Once a guardianship is granted, the guardian must complete the Annual Report of Guardian on Condition of Minor form each year (or more frequently if directed by the court). Through this form, the guardian will provide the court with a report explaining how the guardianship is going overall. The guardian will be asked to discuss the child’s education, health, living arrangement, activities, and time with parent, etc.
You can also find all of these forms here.