The legal relationships presented here may be options for both those children exiting the foster care system or outside the system. For those families who do not want to establish a legal relationship, consent and power of attorney laws are available in several states. All of the following options are presented in general terms. It is important to note that because this area of the law is created at the state-level, how these options are defined and which ones are available can vary significantly.
Adoption
One of the most critical differences between adoption and other options is that it severs all of the birth parents’ rights and responsibilities. The relative caregiver becomes the parent in the eyes of the law. This fact makes access to services on behalf of the child much easier. It also means that the birth parents cannot simply reappear one day and go to court to reclaim parental rights and responsibilities. For a more extensive discussion of adoption, see the adoption analysis on this website.
Open or Cooperative Adoption
More than half the states have some version of this option available. See the adoption analysis for additional specifics. Basically, as part of an adoption, the relative caregiver, birth parents and child develop an agreement for post-adoption contact with the birth parents. In some states, siblings may also be given contact privileges through the agreement. If a party breaches the agreement’s terms, courts can order remedies to enforce it. Invalidation of the adoption, however, is never a possible remedy.
Guardianship
The most significant distinction between adoption and guardianship is that guardianship does not sever the birth parents’ rights and responsibilities. Parents typically retain the rights to visit the child, consent to adoption and/or name change; they also keep the obligation to financially support the child. For caregivers, the guardianship designation allows them to access services on behalf of the child that otherwise might prove impossible. Unlike adoption, the parents can go back to court and ask for the guardianship to be terminated.
Guardianships can be awarded by the probate court, and in some states, by family or dependency courts as well. There are several types of guardianships, and we address many here:
Guardianship by Probate Court
This is the legal relationship that many people think of when the term “guardian” is used. It is the situation where parents, either birth or adoptive, name guardians in their wills to raise their children in the event of their death. If they die, their will goes to probate court, and guardians are appointed. Every state has a law on guardianship by probate.
An interesting aspect of these laws – available in about half of the states -- are provisions that require the probate courts to consider the preferences of older children, usually age 14 and above.
The states accomplish this in a couple of ways:
(1) Some states allow these older children to name who they would like as their guardians.
(2) At least six states allow older children to “object” to the appointment of the person named as guardian in the will.
(1) Older children name their own guardians
Under this variation, older children are allowed to name who they would like as their guardians. The court makes the determination of who to appoint as guardian based on the best interests of the child, and any statutes governing who has priority in naming a guardian.
Some states extend this ability to name a guardian to “relatives” or “any interested person”. For example, in California, a relative, “other person,” or a child 12 years or older, may file a petition for the appointment of a guardian. A "relative" for these purposes in California “means a person who is a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix "grand" or "great," or the spouse of any of these persons, even after the marriage has been terminated by death or dissolution.”[2]
In New Hampshire, Indiana, Nebraska, Oklahoma, and Wyoming, the laws do not specifically mention “relatives”, but they allow a minor 14 years or older or “any person” interested in the welfare of the minor to petition for the appointment of a guardian.[3] Wyoming adds a provision that prioritizes the appointments of guardians in the following order: 1) parents of the minor; 2) person nominated in a will; 3) person requested by minor 14 or older; and 4) any other person in the best interests of the minor.[4]
Pennsylvania appears to be the only state to give preference to the older child’s wishes over the guardian specified in the will: “A person nominated by a minor over the age of 14, if found by the court to be qualified and suitable, shall be preferred as guardian of his person or estate.”[5]
Finally, Tennessee does not mention minors being able to name their own guardians, but does allow a petition for the appointment of a guardian to be filed by “any person having knowledge of the circumstances necessitating the appointment of a guardian” and prioritizes the order to whom the court must give preference: 1) parents; 2) persons designated in a will; 3) adult siblings of minor; 4) closest relative of minor; 5) other person(s).[6]
(2) Older children object to their designated guardians
In six states, children age 14 and over are specifically allowed to object to the person who is named in their parents’ will as guardian: Idaho, Montana, Nebraska, New Mexico, North Dakota, and Utah. This language is from the Uniform Probate Code (UPC), which is a model Code of Laws created by a long-standing nonprofit group called the National Conference of Commissioners on Uniform State Laws. They work to streamline, standardize, and modernize the various state laws. Only a few states have adopted the Uniform Probate Code in its entirety, and from our research, only six seem to have adopted a version of this particular provision concerning objections to guardians.
Here’s the language from the UPC as appears in Nebraska’s statutes:
“A minor of fourteen or more years may prevent an appointment of his testamentary guardian from becoming effective, or may cause a previously accepted appointment to terminate, by filing with the court in which the will is probated a written objection to the appointment before it is accepted or within thirty days after notice of its acceptance. An objection may be withdrawn. An objection does not preclude appointment by the court in a proper proceeding of the testamentary nominee, or any other suitable person.”[7]
Standby Guardianship
This option exists in virtually every state so that parents can continue to be parents and not have their parental rights and responsibilities terminated, but have help with day to day parenting duties. These laws were created in the wake of the AIDS crisis. Typically, standby guardian laws allow parents to designate a standby guardian in the event of their incapacity or debilitation; upon that triggering event, the person designated as the standby files a petition in court to be so named and thereby has the authority to consent and access services on behalf of the child.
In May 2018, Maryland expanded its standby guardian law to include “adverse immigration action” as a triggering event and about a month later, New York expanded its standby guardian law to similarly include “administrative separation” as a triggering event. Maryland Sen. Bill 1239 (2018); New York Surrogate's Court Procedure, section 1726 (2018). New York’s law is more expansive and also allows a legal guardian, legal custodian or primary caretaker like a grandparent, in addition to a parent, to complete a form with two witnesses, and designate another individual to serve as the “standby guardian”. In the event the parent/guardian or primary caregiver is detained or deported, the standby guardian would immediately have guardianship of the child when they get notice of that “administrative separation” and within a certain time period would need to file a petition with the court to be appointed the guardian.
Temporary Guardianship
Temporary guardianships are, as their name implies, temporary. These are for short term situations where a guardian is needed to care for a child. It could involve situations, for example, where the parents are in prison, away from home for work or deployed oversees in the military for a short tour. About thirty-seven states and the District of Columbia have these laws: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, Texas, Utah, Vermont, Utah, Virginia, West Virginia, Wisconsin, and Wyoming.
The states vary in the permissible time length and powers of the temporary guardian. Only three states grant the power of the temporary guardian for a period up to one year: Connecticut, Hawaii, and Wyoming. Thirteen states specify a maximum of six months: Alabama, Arizona, Colorado, Idaho, Maine, Michigan, Montana, Nebraska, New Mexico, North Dakota, South Dakota, Utah, and West Virginia. Some states only allow temporary guardianship for an even shorter time frame, while others do not specify any time limitation.
Although most states give temporary guardians the full powers of guardians, six states – Nevada, New Hampshire, South Dakota, Texas, West Virginia, and Wisconsin -- limit the powers of the temporary guardian. In New Hampshire, they are limited to the “performance of particular acts necessary to prevent immediate serious physical or mental harm to the proposed ward or immediate serious physical harm to others.”[8] Similarly in Texas, the “court shall assign to the temporary guardian only those powers and duties that are necessary to protect the respondent against the imminent danger shown.”[9] In South Dakota, West Virginia, and Wisconsin, the powers are limited to those enumerated by the court. Nevada imposes limited powers only when it extends the appointment time of the temporary guardian. Temporary guardians are appointed for ten days and must seek an extension if needed until another form of guardianship can be awarded. During the extension, Nevada limits the powers of the temporary guardian to those “necessary to respond to a substantial and immediate risk of physical harm or a need for immediate medical attention.”[10]
Limited Guardianship
Limited guardianships are “limited” by the powers the court grants the guardian. These are often used for older people to help with some aspect of their decision making in the event they have dementia or another condition that limits their ability to control their finances or make health care decisions. For our situations involving children, limited guardianships are used to give only certain enumerated powers to a guardian, perhaps only the power to enroll the child in school or some other limited use. Thirty-three states have statutes on limited guardianship: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Tennessee, West Virginia, Wisconsin, and Wyoming.
Nevada, South Dakota, West Virginia, and Wisconsin have both temporary guardians with limited powers, and a separate limited guardianship.
Guardianship by Family or Dependency Court
This type of guardianship does not involve parents who name guardians in their wills. Instead, these are guardianships that are typically created to take advantage of subsidies available to some children in the child welfare system. See the subsidized guardianship analysis for more information. States that provide for the granting of guardianships through family or juvenile court include: Alabama, Arizona, California, Connecticut, Delaware, Florida, Indiana, Maryland, Michigan, Minnesota, Montana, North Carolina, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Virginia, Vermont, West Virginia, and Washington.
A few of these states – Alabama, Michigan, New York, and Washington -- created these legal mechanisms after the Fostering Connections to Success and Increasing Adoptions Act of 2008 was enacted and states decided to take the federal option to use Title IV-E funds to provide guardianship assistance payments. Others were created for subsidized guardianship programs that existed prior to the Fostering Connections Act.
Rather than creating a separate legal mechanism for establishing guardianships in family or dependency court, some states use their existing guardianship procedures through probate courts to implement their subsidized guardianship or guardianship assistance program.
Legal Custody
Legal custody is a similar status to guardianship, but is usually granted by a different court that has different procedures. The status of “guardian” may give access to more services and rights than “legal custodian.” Consider, for example, how many times you read or hear the phrase “parent or guardian” without any mention of “legal custodian.”
There are 19 states with statutes governing legal custody of children: Alabama, Arkansas, Georgia, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, and Virginia.
States can use their legal custody mechanisms for the legal relationship needed for subsidized guardianship or a guardianship assistance program. Pennsylvania, for example, uses its long-standing Permanent Legal Custodianship relationship granted by juvenile court for its federal, state, and county guardianship assistance programs, known as Subsidized Permanent Legal Custodianships.
De Facto Custody
Because of difficulties with bringing legal custody cases and proving that parents are unfit as part of the process, some states have enacted innovative laws that can help relative caregivers. These laws essentially provide that rather than proving the parent is "unfit", if a relative has been raising a child for a significant period of time, the first step in proving his or her case is met.
De facto custodian is typically defined as the primary caregiver and financial support of a child who has resided with that person for at least (1) six months if the child is under age three; and (2) one year if the child is at least age three. If the judge finds that the person is a de facto custodian, he or she has the same standing as a parent in the legal custody dispute. Custody is then determined based on the best interests of the child.
Kentucky was a pioneer in this area when it passed the nation’s first de facto custody law in 1998.[11] Indiana was next, having learned from its neighbor. There are now eleven states and the District of Columbia that recognize de facto custody: California, the District of Columbia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Montana, and South Carolina.
New York law does not provide for "de facto custodians" per se, but it defines a previously undefined term of physical custody that makes it possible for a grandparent to seek legal custody.[12] A New York trial judge in a legal custody dispute between a parent and a grandparent must find an “extraordinary circumstance” before deciding legal custody. Extraordinary circumstances include an extended disruption of custody. The length of the disruption had not been defined prior to this law, which was enacted in 2003. This led to different outcomes depending on the judge. This law defines the disruption to be at least two years. Therefore, if the parents voluntarily gave up physical custody of a child who then resided in a grandparent's home for two or more years, judges must decide legal custody based on the best interests of the child. For less than two years, judges have discretion to find an extended disruption or not.
Power of Attorney and Consent
In some states, relative caregivers who do not want or have a legal relationship to the children in their care have laws that make it possible to access medical treatment and educational services on behalf of the children without going to court.
Power of Attorney Laws
Under power of attorney laws, parents complete a form or handwritten document that states what type of authority they are giving the caregiver. As discussed in the education and healthcare analyses, many states and the District of Columbia have explicitly codified power of attorney laws so parents can bestow relatives with the power of attorney for the care of their children: Alabama, Alaska, Arizona, Arkansas,, Colorado, the District of Columbia, Georgia, Hawaii, Idaho, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Tennessee, Utah, and Washington.
These states typically allow the power of attorney:
- to be designated for six months to a year, so it may not be the best option for long term caregivers
- to confer all powers over the care of a child, with the notable exceptions of the powers to consent to marriage or adoption
In 2005, New York enacted a power of attorney law that legalized the common practice of parents writing notes to schools or medical providers stating that other people have temporary responsibility for their children. This law is more explicit than some other laws and delineates what information parents must include in the document to designate a temporary caregiver, either related or not related, for their children. If the time period is not stated, it is assumed to be thirty days. Six months is the maximum time designation, but renewals are permissible. Once the designation is completed, temporary caregivers can:
- enroll a child in school
- sign necessary school consent forms, like those for class trips
- consent to most medical care, including immunizations, routine medical care, dental work, mental health therapies, and emergency care
Caregivers, however, cannot consent to certain elective major medical procedures.[13]
Beyond the numerous states and the District of Columbia that have power of attorney laws specifically for parents conferring decision making over their children, virtually all states have general power of attorney laws. These power of attorney laws may perhaps be used for our purposes of conferring power for the care of children, but they are not specifically designed for that purpose.
Consent Laws
About 17 states have educational consent laws, which effectively allow children being raised by relatives to attend public school free of charge. More states, about 25, have some form of healthcare consent law. Both types of laws differ in various ways, including how long the consent authority lasts. The health care consent laws also vary in terms of what types of treatment are covered. Some laws only include immunizations or medical care, whereas others, like Delaware's, include mental health and developmental screenings.
Finally, it is important to note that power of attorneys and consent documents can be easily revoked by the parents. Furthermore, institutions, such as schools and hospitals, may not accept them despite the existence of a law stating they should.