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{ September/07/2010 }
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Article 81 Guardianship Prectice: Perspectives From the Bench & Bar
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News & ArticlesAugust/1/2010 Family Law UpdateBy Gerard E. Maney Mary has led a difficult life. As a 12-year-old, she was removed from her home after years of neglect. She has been in foster care for over two years. Luckily, her paternal aunt stepped forward and became her foster parent. Mary is thriving while living with her aunt and her aunt is committed to raising her. Mary’s parents have serious mental health issues and are in and out of hospitals. She does not see them often, but she loves them and does not want to hurt them by agreeing to be adopted. Mary’s aunt wants to care for Mary in the future, but she does not have the financial resources to care for Mary without the subsidy she receives as a foster parent. Attorneys practicing in Family Court may have run across scenarios such as this. In the past, Mary would likely have remained in foster care until she aged-out. Permanency would never have been reached for her. The Governor recently signed legislation amending parts of the Social Services Law, the Family Court Act and the Surrogate’s Court Procedure Act that provides another permanency option for children in situations similar to Mary -- children who cannot be returned to their birth parents but for whom adoption has been ruled out. Effective April 1, 20111, New York will join several other States in authorizing subsidized kinship guardianship, statutorily referred to as the Kinship Guardianship Assistance program.2 The program enables kinship foster caregivers to become legal guardians of the child -- outside the foster care system -- while continuing the financial support they received as foster parents without having to adopt. A prospective relative guardian, defined as a person who is related to the child through blood, marriage, or adoption who has been caring for the child as a foster parent for at least six consecutive months 3, may apply for kinship guardianship assistance through the social service agency with care and custody of the child 4. The social services agency first determines whether the child is eligible for kinship guardianship assistance payments 5 and whether it is in the best interests of the child that kinship guardianship occurs. If so, the social services official and prospective relative guardian enter into an agreement authorizing guardianship assistance payments, which may continue until the child’s 18th birthday or, under certain circumstances, until the child reaches 21 6. Subsidies become effective once the child is discharged from foster care to the relative and letters of guardianship are granted. This legislation offers children in foster care and for whom adoption is not an option a chance to retain a connection and sense of belonging to his or her birth family, and promises to afford the child a greater sense of stability and security than what foster care typically affords. Kinship guardianship gives the relative guardian the legal authority, which he or she lacked as a foster parent, to make decisions about the child’s protection, education, care and control, health and medical needs and physical custody. The relative guardian obtains full legal rights with respect to the child and the financial subsidy often necessary to help defer expenses related to the child’s care. Agency oversight comes to an end as does the routine court appearances and case reviews, which are no longer necessary. Foot notes: |
 
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