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Legal Information

The following information is not legal advice. It is not a substitute for consulting a licensed attorney. Up-to-date legal advice and information can only be obtained by consulting with an attorney. This information was provided in February of 2012, but changes to the law occur daily. Contact us at 1-888-659-3745 or help@kinshipalliance.org to learn about legal resources in your state.

Federal Laws

 1978 Indian Child Welfare Act
Federal policy states that in Native American placements, a child should be “within reasonable proximity to his or her home…” and that states should aim to place the child with “a member of the Indian child’s extended family…”
1980 Adoption Assistance and Child Welfare Act
“Least restrictive, most family-like setting available located in close proximity to the parent’s home, consistent with the best interests and special needs of the child.” Many states interpreted this act as an implicit preference for the use of kin as foster caregivers, and several states began to enact laws that explicitly preferred kin.
1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)
Known as the legislation that reshaped the nation’s cash assistance landscape, it also requires states to “consider giving preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant state child protection standards.”
1997 Adoption and Safe Families Act
A “fit and willing relative” can provide a “planned permanent living arrangement.” Termination of parental rights does not have to occur within the allotted timeframe if “at the option of the state, the child is being cared for by a relative.”
2006 Adam Walsh Child Safety and Protection Act
Requires background checks for all foster and adoptive parents, including relatives and presumptively disqualifies those with certain criminal convictions.
2008 Fostering Connections to Success and Increasing Adoptions Act
Requires that relatives are located and provided notice if a child is removed from his or her parent’s care. Supports enactment of subsidized guardianship for children to exit foster care in all states. Creates “Family Connection Grants” to connect children in foster care (or at risk of entering foster care) with family, including support of kinship navigator programs. Website updates available online.

 

Cases Related to Kinship Care/Grandparents Rights

Miller v. Youakim (1979)
U.S. Supreme Court case directing local child welfare agencies to pay kinship caregivers the same rate as foster parents, provided they meet the requirements of foster care licensing.
Relatives v. State: Homeowner was convicted in Ohio of violating East Cleveland housing ordinance which limits occupancy of a dwelling unit to members of a single family and recognizes as a “family” only a few categories of related individuals. The Court of Appeals of Ohio, Cuyahoga County, affirmed, and homeowner appealed. The Supreme Court, Mr. Justice Powell, held that the ordinance in question, under which it was a crime for homeowner to have living with her a son and grandson plus second grandson who was cousin of first grandson, violated due process. When city undertakes intrusive regulation of the family, usual judicial deference to the legislature is inappropriate, as freedom of personal choice in matters of marriage and family life is one of the liberties protected by due process, and thus when government intrudes on choices concerning family living arrangements, Supreme Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.
Rivera v. Marcus (1982)
Half sister, who had liberty interest in preserving familial relationship with her half brother and sister, did not waive any of her constitutional rights by entering into foster care agreement with state welfare department, even though agreement authorized state to remove children from foster care at any time, where there was no evidence that half sister intentionally and intelligently waived her due process rights when she signed the agreement or that state informed her of legal implications of her decision.
Rivera v. Mattingly (2011)
Procedural due process right of biologically related foster parents, but not substantive right, dismissed federal claims of great-aunt and great-uncle against ACS, finding that due process was not violated.

 

Additional Cases:

De Facto Statutes:

Indiana: IC 31-14-13-2 (1999)

Allowing a primary caretaker of a child for a minimum period of time to apply for custody if a judge deems that to be in the best interests of the child

Kentucky: KRS 403.270 (1998)

Allowing a court to declare a relative or non-relative caretaker a child’s custodian if it is in the child’s best interests

Minnesota: MS Section 257C (2002)

Allowing a relative or non-relative “interested” third party to petition the court for custody of a child under their care by showing clear and convincing evidence that the parent has disregarded or abandoned the child and that kkplacement with them is in the best interests of the child

Oklahoma: 10 Okl. St. 21.2 (2002)

Defining abandonment for children placed with relatives with same time periods as three other states: six months/one year time period dependent on age of child

The Constitutional Rights of Parents

Troxel v. Granville (2000)
U.S. Supreme Court case stating a constitutional right of parents to raise their children without intrusion from an unwanted third party. Essentially, parents have the right to deny visitation with a third party such as a grandparent.

Additional Cases: