Kinship Care in New York

Kinship care occurs when a child is raised by an adult other than a parent. Kinship care is different than foster care, and more than 95 percent of kinship caregivers in New York are not classified as foster parents.  Grandparents, other close relatives of a child, and non-related persons who assume full-time care of children in their own homes are all considered to be providing non-parent care or “kincare” as it is sometimes called.

Children routinely enter kinship care as a result of an unstable home life, death, incarceration, or military deployment. Alcohol or substance abuse on the part of the parent, mental illness, or abuse, neglect, or abandonment can all be situations in which a child enters kinship care.  It is important to understand the process by which a child goes to live with a kincare provider as well as to understand the rights of the carer.

How Do Children Enter Kinship Care? 

There are four primary mechanisms through which a child may enter kinship care:

• The parents may consent to give a family member or friend guardianship. Courts will still review the background of the new carers, including doing a child abuse registry check, even if parents have decided to sign over guardianship of their children.
• The relative or friend seeking to care for the children will petition the court. This is the mechanism used if parents do not consent but if child protective services has not yet become involved. The petitioner seeking custody will need to prove extraordinary circumstances. In Bennett v. Jeffreys, the authority of the family court to decide custody based on the best interests of the child was expanded to situations where there is an “extended disruption of custody.”  After Bennett, courts have held that a child living with a caregiver for as little as six months can constitute extraordinary circumstances.
• Child protective services may ask a family member or family friend to care for the children before the child has been legally removed from parental custody. If this procedure is used, the caregiver will not be considered a foster parent but will instead be considered to provide kinship care.
• Child protective services may reach out to a family member or friend after removal. If a child is removed from a parent’s care, Department of Social Services must search for “suitable relatives” and offer them the opportunity to become foster parents. If a child is put into a relative’s home after removal, this is not usually kinship care but instead the relative will need to become a foster parent.

In 2008, the Fostering Connections to Success and Improving Adoption Act was passed at the federal level. This Act imposed requirements on the NY state department of social services (and other state social services agencies) to take action to find and notify immediate relatives within 30 days of a child being removed from a parent’s care. This provides more opportunity for relatives to become foster parents or to offer kincare.

Foster Parenting vs. Kinship Care

 A relative offering kinship care is NOT a foster parent. Relatives providing kincare are classified as having private custody of the child when they agree to be the guardian of the child.

Foster parents are offered a state stipend to care for children, but will need to complete foster care certification before they become eligible. Once you begin offering kinship care and the children are under private custody, it can be difficult to transition to becoming a foster parent.

Foster parents who are taking care of a child who is a relative may also be eligible for the Kinship Guardianship Assistance Program (KinGAP).  KinGAP allows a child to receive a permanent placement with a relative.  A foster parent becomes eligible for this program after serving as a foster parent to a child for at least six months. The prospective guardian must also be related to the child by blood, marriage, or adoption and the foster child must have a “strong attachment” to the relative seeking to become a guardian. Children over 14 will be consulted to determine if they wish to make the placement permanent.  The child does not have to be free fro adoption to be eligible for the KinGAP program. Under the KinGAP program, a level of financial support and medical coverage is provided to the child which is similar to the maintenance payments paid to foster parents.

Getting Help with Kinship Care

 When a child is no longer going to live with biological parents, the process of determining an appropriate living environment is complicated. An experienced family law attorney can explain kinship care versus foster parenting and can help to make a determination on what options are best for protecting and caring for the child in your life.  Call a lawyer as soon as possible for help.