Page 97 - Impact: Collected Essays on the Threat of Economic Inequality

Relatives may also petition for legal custody in family court .36 Although many states offer both family court custody and probate guardianships with different procedural requirements and substantive standards, the distinction between the two is not always clear, and both afford the relative similar custodial rights delineated by the judge .37 They grant the relative power to make decisions about a child’s living arrangements, health, education, and care, but do not typically extinguish the natural parent’s rights . If parental rights are still intact, the parent remains liable for child support, and the order can contain specific visitation arrangements with the biological parent . Following the appointment, probate courts retain jurisdiction over the minor, but there is typically very little ongoing court involvement . Anyone, including the biological parent, can ask the court to review or revoke the appointment at any time .
Biological parents must be afforded notice and an opportunity to be heard in any proceeding involving their children . If the parent objects to the relative’s care, the legal standard used to resolve the dispute must afford the parent deference, in accordance with the firmly established constitutional principle that parents are entitled to care, custody, and control of their minor children .38 In the child welfare context, the initial adjudication of parental fault gives the court wide latitude to make decisions to protect the child . Outside of the child welfare context, the court must make a finding of parental unfitness or detriment to the child before it can overrule a parent to place a child with a relative .39 Courts may be more reticent to do so without the machinery of the child welfare system to prove the allegations .
Relatives may obtain financial assistance through public benefits programs such as TANF, Food Stamps, Supplemental Security Income, Medicaid, and the Children’s Health Insurance Program . TANF is the most common source of financial assistance . The Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”) created TANF to, among other things, provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives .40 A relative may receive child-only TANF benefits for a needy child in their care . If the relative otherwise meets the eligibility requirements for TANF, they may receive TANF for themselves, but must then comply with PRWORA’s rigid work requirements .41 TANF child- only payments are typically less than other TANF grants, foster care, or subsidized guardianship payments . Moreover, PROWRA imposes a five-year life-time maximum on benefits .
III. Toward a Legal Framework that Supports a Public Health Model
In a public health model, families should be able to reapportion custodial rights and responsibilities, as well as obtain support and services, without having to enter the child welfare system . When a parent experiences challenges, a relative should be able to step in so that the child can remain in the family and community . This might be a temporary arrangement until a parent
36 See e.g., N.Y. family courT acT § 661 (2015)(granting the family court concurrent jurisdiction over guardianships).
37 Merril Sobie, N.Y. family courT acT § 661, Supplementary Practice Commentaries, (2012); Knuppel, supra note 35.
38 See e.g., Troxel v. Granville, 530 U.S. 57 (2000).
39 See e.g. Ortiz v. Winig, 82 A.D.3d 1520 (N.Y. App. Div. 2011)(a biological parent has a right to custody of his or her child superior to that of a nonparent in the absence of unfitness or extraordinary circumstances).
40 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2106 (1996).
41 Meredith L. Alexander, Harming Vulnerable Children: The Injustice of California’s Kinship Foster Care Policy, 7 hasTings race & poverTy L. J. 381, 414-417 (Summer 2010).
Protecting Families
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