Family and Relationships
Kinship Legal Guardianship
This information last reviewed: 11/2/2011

New Jersey has a program that started in January 2002 to provide financial help to certain people caring for their grandchildren, nieces, nephews, or other children. It is called the Kinship Care Subsidy Program. A caregiver may be eligible for the program if she or he has cared for the child for at least the last 12 months. In order to apply for the subsidy program, the caregiver must file a court action and ask the court to appoint him/her as “kinship legal guardian” for the child living in his or her home.

Kinship legal guardianship has major consequences for families. When a caregiver is appointed kinship legal guardian for a child, s/he assumes most responsibility for the child. While the parents can still have contact with the child, they lose their rights to custody and will have a hard time getting custody back. The caregiver must notify the child's parents and all other people who have legal visitation rights with the child that s/he is applying for kinship legal guardianship. If the parents or others with legal rights to visit with or care for the child choose to resume custody, they can oppose the caregiver's court action.

The caregiver does not have to be related to the child in his or her care to apply for this program. The program is also available to family friends or other people having a legal relationship with the children in their care. In addition, DCP&P (fromerly DYFS) can ask the court to award kinship legal guardianship to foster parents in certain situations. If a caregiver qualifies for this program, s/he will be able to receive up to $250 per month for each child in her or his home. There are special rules about how this applies to DCP&P cases.

What is kinship legal guardianship?

Rights of kinship legal guardians and birth parents

A caregiver can ask the court to appoint him or her as kinship legal guardian for a child living in his/her home when the child's parents are unable to care for the child. The kinship legal guardian will have the same rights and responsibilities as a birth parent, including making decisions about the child's care, consenting to medical treatment, making plans for the child's education, applying for services for the child, and general responsibility for ensuring the child's safety and well-being.

Rights and obligations of the child's parents

If the court grants kinship legal guardianship to the caregiver, the birth or adoptive parents will no longer have legal custody of the child, but their parental rights will not be terminated.

The parents will still have the following rights and obligations:

  • The right to visit the child;
  • The power to consent to an adoption or name change; and
  • The obligation to pay child support.

The child may still visit with siblings and/or extended family, with the kinship legal guardian's permission or as allowed by the court. The child can still inherit money from his/her parents and get government benefits or insurance through them.

Who is eligible for kinship legal guardianship?

A caregiver can become a kinship legal guardian for a child if:

  • The child has been living with the caregiver for at least the last 12 months;
  • The child's parents are incapacitated and cannot take care of the child;
  • The caregiver is biologically or legally related to the child or is a family friend;
  • The caregiver can show that it is in the child's best interests to stay with him/her; and
  • The caregiver is financially eligible. (See eligibility chart below).

How long does kinship legal guardianship last?

A kinship legal guardian is responsible for taking care of the child until the child turns 18. The court can end the guardianship before the child turns 18 if:

  • Ending the guardianship is best for the child;
  • The parents become able to take care of the child; or
  • The kinship legal guardian is unable to take care of the child.

If the parent or guardian seeks to end the guardianship before the child turns 18, s/he will have to file a motion with the court. The court will hold a hearing and determine whether the guardianship should be ended. If a parent wants to regain custody of his or her child, s/he will have to prove to the court that the circumstances that led to the kinship legal guardianship have changed and that s/he can now take care of the child. The parent will have to prove this with strong evidence, called clear and convincing evidence.

How can someone apply for kinship legal guardianship?

To apply for kinship legal guardianship, a caregiver must contact the Kinship Navigator Program in the Department of Human Services at 877-816-3211. The Kinship Navigator Program will assign one of four regional agencies that conduct assessments for the Kinship Care Subsidy Program to evaluate the situation. An assessment of the situation must be completed before a court action can be filed. When the assessment is completed, the caregiver will file it in family court along with a court form called a petition to start the kinship legal guardianship process. The court will not charge a fee for filing a kinship legal guardianship petition.

Getting an assessment

The agency that conducts the assessment must fill out an assessment form providing the court with the following information:

  • Basic information about the caregiver, child, parents, and other members of the caregiver's household including name and address;
  • The location of the child's parents, the reasons they are unable to care for their child, and their wishes concerning kinship legal guardianship;
  • The caregiver's ability to provide a safe and permanent home for the child, and a certified statement that the child has lived with the caregiver for at least the last 12 months;
  • The child’s wishes if the child is age 12 or older or there are other reasons why the child's wishes should be heard;
  • A list of any assets or property owned by the child; and
  • Whether the child is involved with DCP&P.

The assessing agency will perform a study of the caregiver's home to complete the assessment for kinship legal guardianship. The agency will also get background checks on the caregiver and all other adults living in the home. This will consist of checking criminal records, the domestic violence central registry, and child abuse records.

If the caregiver is financially eligible for the Kinship Care Subsidy Program, s/he will not have to pay for the assessment. If DCP&P is seeking to appoint a kinship legal guardian, DCP&P will conduct and pay for the assessment.

Who does the caregiver have to notify when s/he files a petition for kinship legal guardianship?

Notice must be given to the parents and any other party who has court-awarded custody or parenting time with the child.

Standards for kinship legal guardianship

The caregiver who seeks kinship legal guardianship (or DCP&P in actions it files) must prove to the court by clear and convincing evidence that:

  • Each parent’s incapacity is so serious that the parents are “unable, unavailable or unwilling” to care for their child;
  • The parents are not likely to be able to care for their child in the near future; and
  • Kinship legal guardianship is in the best interests of the child.

The court must also consider the assessment. If the caregiver or a household member has a criminal record or a final domestic violence restraining order against him/her, the court must review the circumstances and decide whether the person can safely become a kinship legal guardian.

When parents oppose kinship legal guardianship

When parents receive notice that their child’s caregiver is applying for kinship legal guardianship, they must decide what to do. Their child will already have been out of their home for at least the past year.

If you are a parent, you must decide how you want to proceed. Do you want to oppose the petition so that the caregiver does not become your child’s kinship legal guardian? Do you want to try to regain custody of your child? Do you want to consent to the kinship legal guardianship and just make sure you have adequate visitation time with your child?

You will receive a court petition that gives you a date to appear in court. You should go to court on that date and let the court know what you plan to do. Or you must let the court know that you cannot appear on that date and ask for a different date. You must go to court if you want to contest the action and try to prevent the caregiver from becoming your child's kinship legal guardian. Even if you do not oppose the kinship legal guardianship, you should go to court to make sure you get reasonable visitation with your child.

If you participate in the kinship legal guardianship action, there will be a hearing before a judge. The caregiver will try to show the court that you are unable to care for your child, that your situation will not change in the near future, and that it will be the best thing for your child to stay with the caregiver. You will need to show that this is wrong. You will need to demonstrate that you are able to care for your child and that it is no longer best for your child to stay with the caregiver. Probably there were reasons why your child went to live with the current caregiver. You will need to show that those reasons no longer exist.

You will need to think about whether you have anyone who can help you show the court that you are now able to care for your child. Depending on your situation, consider whether you have any doctors, mental health professionals, service providers, including substance abuse treatment providers, friends, clergy people, neighbors, or others who may be able to testify for you. Let the court know if you need time to prepare for the hearing.

Amount of kinship legal guardianship subsidy

A caregiver who is granted kinship legal guardianship by the court and meets the financial eligibility requirements will qualify for a monthly subsidy. The kinship legal guardian can get up to $250 per month per child under the Kinship Care Subsidy Program, as long as the program still has funds. If the child has income, that will be subtracted from the $250 and the kinship legal guardian will receive the difference.

Note: Without kinship legal guardianship, caregivers can get a child only welfare grant of $162 per month for one child. They can get additional increments for more children, for example, $322 for two children. Families should be aware that the higher kinship care payments may result in a reduction of any food tamps or housing assistance they receive. Foster parents are entitled to higher payments than kinship legal guardians. The minimum monthly payment for foster parents is $406 per child.

Financial eligibility

The following are the maximum gross income limits for the program.

Household Size

 

Maximum Gross Annual Income
(before taxes)

2

$17,910

3

$22,530

4

$27,150

5

$31,770

6

$36,390



Household size includes all members of the household, including the child for whom the caregiver seeks kinship legal guardianship. For each additional household member after 6, add $4,620 to the income limit. Welfare benefits, SSI, and foster care payments are not included as income.

Special rules for DCP&P cases

Who can file?

Only DCP&P can seek legal guardianship when there is an open DCP&P court case for the same child. If the caregiver has cared for a child placed by DCP&P for at least 12 consecutive months, and there is no open court case with DCP&P, then s/he can ask DCP&P for permission to file for kinship legal guardianship on his/her own.

Parents may request legal guardianship

Parents may ask the court to consider awarding kinship legal guardianship to someone in an open DCP&P action. In some cases, this option may be advantageous to the parent. If s/he is likely to have his or her parental rights terminated, legal guardianship given to another adult will allow the parent to maintain visitation rights with the child.

Assessment

The kinship caregiver assessment will be provided free by DCP&P in all cases filed by DCP&P and in cases where a caregiver files with DCP&P' consent as explained under Who can file? The court will consider DCP&P' recommendations, including any visitation restrictions. Note: This law was intended to maintain visitation rights for birth families and parents should be able to have some contact with their child even if DCP&P seeks to limit that contact.

Additional standards for guardianship

In addition to the standards listed above, DCP&P must prove that

  • It tried to reunify the child with the parents and its efforts were unsuccessful or unnecessary, and
  • adoption of the child is neither possible nor likely.

Right to counsel

Indigent parents and children have a right to legal representation if DCP&P already has an open court case and they are currently being represented by or through the Office of the Public Defender.

Permanent placement

When a kinship legal guardian is appointed in a DCP&P case, the court will consider that to be the permanent placement for the child and DCP&P will close its case.

If you are a caregiver seeking to become a kinship legal guardian or a parent who has received notice that your child’s caregiver is filing for kinship legal guardianship, you may want to consult an attorney. If you are unable to afford an attorney, you may want to contact your local Legal Services office or LSNJLAWSM, the statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529) to see if they can help you.