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consequences, and the system may actively disrupt the parent-child relationship once it gives up on helping parents .
Families must also endure the invasive control and vagaries of the child welfare system during a lengthy permanency planning process, during which reunification efforts must be attempted and adoption must be ruled out .30 For example, in New York, a child is eligible for kinship guardianship assistance payments only after the fact-finding hearing and first permanency hearing have been completed .31 To receive financial assistance, a relative must submit an application for approval, and enter an agreement with the local social service agency, before obtaining a guardianship order from the court 32 Without functioning subsidized guardianship programs, relative foster parents may not be able to forfeit foster care payments in favor of unsubsidized permanency .33
b. Outside of the Child Welfare System
If a relative wants legal authority and financial assistance to care for a child without child welfare involvement, he must navigate two distinct processes— judicial and public benefits . Legal custody may be obtained through private guardianship or other types of custody proceedings . Relatives may be reluctant to bring private cases for fear of drawing attention from child welfare officials . Moreover, poor families may have limited access to private family proceedings because of high filing fees, or the difficulty of navigating the court process without an attorney . Because of the presumptions in favor of parental custodial rights, even if a relative brings a case, the substantive legal standard may be difficult to meet in some circumstances . For financial assistance, relatives must apply through the state’s public benefits programs . Financial and other assistance for relative caregivers is lower or non-existent outside of the child welfare system . While all states provide relatives with TANF assistance for children in their home, these benefits are lower than foster care payments . Depending on the state, there may or may not be other services available for either the relative or the child .
Probate guardianships are the traditional way, outside of the child welfare context, for a relative to obtain legal authority to care for a child . Most probate courts appoint guardians when parents are deceased, are incapacitated, are out of the picture, or consent .34 States vary as to whether probate courts have jurisdiction to appoint a guardian over the objection of a biological parent .35
30 Cynthia Godsoe, The Permanency Puzzle 2013 mich. sT. l. rev. 1113, 1116-1118 (2013), available at http://papers. ssrn.com/sol3/papers.cfm?abstract_id=2461397.
31 N.Y. soc. serv. Law § 458-b, 1(e).
32 N.Y. soc. serv. law § 458-b, 2(b)&(c); Merril Sobie, N.Y. family courT acT § 661, Supplementary Practice
Commentaries, (2012).
33 Id. There is research showing that children in relative foster care are less likely to achieve permanency as defined by the child welfare system, but more recent data suggest that these differences may not be as significant as once thought. Eun Koh, Permanency Outcomes of Children in Kinship and Non- Kinship Foster Care: Minimizing the Effects of Selection Bias with Propensity Score Matching 5, 8 (Jan. 2008), osu knowledge Bank, https://kb.osu.edu/dspace/bitstream/handle/1811/32041/20_4koh_paper. pdf;jsessionid=2ACE1ECAC6E293C07BBA176B99611CBA?sequence=2; Iryna Hayduk, The Effect of Kinship Placement on Foster Children’s Well-Being (Mar. 2014), https://research.stlouisfed.org/conferences/moconf/2014/ Hayduk_paper.pdf.
34 See e.g., fla. sTaT. 744.3021 (2015).
35 Neil Knuppel, Custody in Probate Guardianships: Different Venue, Same Rules, 45 feB-orange counTy lawyer 44 (2003) (describing California law allowing appointment of guardianships over objection of parents based on a finding of detriment to the child).
Impact: Collected Essays on the Threat of Economic Inequality