Let’s Examine Legal Guardianship
Legal guardianship refers to a situation where someone, other than the child’s parents, obtains legal authority over a child. The person who becomes the child’s guardian has the responsibility to care for the child until he or she turns 18 years old. Becoming a legal guardian is not an informal situation and is done via court appointment only. In rare circumstances, parental rights may be terminated by the judge, which allows a legal guardian to then become the child’s adoptive parent.
The only person who can become a child’s legal guardian is someone who has been approved by a court of law. Unlike in foster care, where the person being chosen by the court to raise a child may never have had contact with said child in the past, the person selected as the guardian must have some type of relationship with the child and actively be involved in his or her life.
Legal guardianship is similar to foster care in that the child’s biological parents will have some rights, but not as many as if the child were living in the home full-time under the care of them. The biggest difference between the two forms of care, however, is that legal guardianship involves a much deeper level of commitment than is typical of foster care . While many children are placed with foster parents on a temporary basis until a permanent arrangement is made, a legal guardianship is much closer to adoption in that the court is placing the child in the legal guardianship with the expectation that the arrangement will last until the child reaches adulthood.
The child will be removed from the parents’ home and the parents will be assigned a visitation schedule with the child, who will also be given a new address. This does not mean, however, that the child will be fully cut off from their biological family. It is possible that social services could aim to reunite the child with his or her family in a manner similar to what is seen in foster care cases. If the court sees progress being made throughout this process, the child could even be returned back to his or her biological parent’s home at some point in the future.
It’s important to note, however, that there are some situations in which the parents of a child do not regain custody once the child is placed with a guardian. This scenario is much more common in cases of legal guardianship than it is in foster care, which suggests that legal guardianship is a better option for families wishing to care for children in need in a more long-term capacity.
Foster Care Overview
Foster care is a temporary living situation for children in need of care and protection. Children may be placed in foster care for short-term, or they may be there for many years based on the circumstances that led to their removal from the care of their biological parents. The purposes of foster care are generally to protect children, help to reunite them with their parents, and to find a permanent placement for them.
To become a foster parent, individuals must meet minimum eligibility standards. This includes background checks and home inspections. In many cases, people who want to be foster parents must attend classes to get an understanding of caring for a child who has experienced trauma or loss. While one of the goals of foster care is to reunite children with their parents or to find them an adoptive home, parents do not have to consent to this for a foster parent to seek custody. To do so, a foster parent must seek that through the juvenile court.
The federal government is involved in the foster care system. When states accept funding for foster care, they must follow certain guidelines of the laws governing them. The following are a few of those requirements:
- The government has to ensure that it has made "reasonable efforts" to prevent the child’s removal from home or to reunify a child with their parents after the removal.
- The foster care system must find adoptive homes for all children who have a goal of adoption.
- Foster care placements must be discussed within the family unit to find the least restrictive and most family-like setting for the child.
- If a child has a disability, the government must ensure that the selection of foster and adoptive homes meets the federal guidelines of the Americans with Disabilities Act (ADA).
Comparison of Legal Rights and Responsibilities
When it comes to the legal rights and responsibilities of guardians compared to foster parents, there are striking differences. A legal guardian has comprehensive legal authority to make decisions for the child without the need for consistent court approval, whereas decisions made by foster parents must be done in conjunction with child welfare agencies and foster parents do not receive compensation for their role. While a guardian ad litem is responsible for a child’s best interests in matters related to custody in abuse and neglect cases, a legal guardian is responsible for the health, safety, and welfare of a child. Guardians can be held criminally responsible for abuse or neglect of a child.
Foster care arrangements are established when a state or child welfare agency removes a child from the home of his or her parents. When this happens, the agency seeks legal custody of the child until a place to live is found. This can occur when parents are deemed unfit to care for their children. When this happens, the child is made a ward of the state, and foster parents are licensed or certified by the state to provide temporary care for children while actions are taken to reunite children with their biological parents. A child will return home only when the state determines that a parent is ready and approved for that step. Depending on the circumstances, failed reunifications can happen multiple times before a termination of parental rights occurs.
Emotional and Social Implications for Kids
Under the legal guardianship structure, the child is able to maintain contact with their biological parents, which allows for a healthy relationship between siblings, grandparents, and cousins as well. Such connection is difficult in the foster care system, where a decrease in association is a result of the fact that the child is legally separated from her family. The emotional support that comes from kinship relationships is an important part of the developmental process, and eliminates the commonly experienced identity confusion, especially among older children and teens. In most cases, the child gets sufficient psychological support from the adults in his or her life.
On the other hand, those who grow up in the foster care system have more severe loss issues, struggle with attachment problems, and often have identity crises. This is an age-old problem among foster care children. When foster children are unable to attach to someone, they are deprived of the opportunity to trust and love caregivers. They learn to mistrust adults and do not connect emotionally with their new foster parents and siblings. Many times, such children exhibit behavior problems as well.
Not surprisingly, research shows that extended separation from their biological parents puts youth in foster care "at a greater risk of future homelessness, unemployment, incarceration, and psychiatric disorders." The trauma of the separation manifests in teenagers through aggressiveness, withdrawal, and unwillingness or inability to trust adults. This means that, in many cases, the bond the child shares with foster parents has been broken.
While the goal of the Florida foster care system is to reunite the child with the biological parents, this is not possible in all cases. When a child is put into long-term foster care or the goal is eventually changed to become permanent placement, the psychological effects of being placed in foster care linger. If the child has moved from home to home, or school to school; if his caregivers were different; and if he was denied a chance to build relationships with one group of adults, then the child’s struggles with attachment may become permanent. All of which creates a risk of isolated social development in a situation where peers are the primary socialization source.
Eligibility and Application Process
Legal guardianship applicants must be qualified adults to apply to become a legal guardian. Guardianship applications are Section 18‑8 processes. Not all DCF regions are utilizing Section 18‑8 processes for Guardianship – some are still using prior Chapter 39 processes. Section 18‑8 processes are not governed by Chapter 39, but are specific to the section. Guardianship cases are initiated in circuit court and not in juvenile court; thus the case is not confidential, unless the court order says otherwise. Guardianships apply to children who have exited out of the dependency system via (a) adoption, (b) exiting from foster care and/or (c) turn 18.
Currently there is no mandatory background check process for guardians because they are private petitions filed in circuit court . Guardians are also not required to undergo any mandatory training or certification process. As part of the circuit court process, the judge may require parenting classes, alcohol and drug assessments, drivers evaluations, etc. depending on the circumstances of the case.
On the other hand, a foster parent must complete a series of background checks (And possibly a fingerprint background check) to apply to become a foster parent with the various circuits having different requirements. The courts and/or the community-based care agencies may also require the foster parent to attend training classes and/or seminars before and after being approved as a foster parent. Quarantine and sterilization requirements are also an eligibility requirement if the foster parent owns animals.
Long-term Outcomes and Considerations
Legal guardianship is designed as a more permanent alternative to foster care. A recent longitudinal study published in the American Journal of Psychiatry offers new insight into the long-term outcomes of youth who experienced legal guardianship as opposed to those in foster care.
The study looked at 565 older adolescents and young adults from four states (Illinois, Massachusetts, Maryland, and Oregon), all of whom had spent time in foster care. This group was then divided into three sub-groups: 231 youth who were discharged to guardianship; 259 youth who returned home; and 75 youth who "aged out" of the system. It then examined the participants’ mental health, substance abuse and criminal activity over a 3-5 year period.
"Our findings showed that youth who exited to guardianship were significantly less likely to end up incarcerated than those who aged out of foster care and they also did better with respect to mental health measures," said Dr. David Rubin, pediatrician and co-director of the Policy Lab at Children’s Hospital of Philadelphia, co-author of the study. "We also found that legal guardianship wasn’t associated with increased substance use among the kids, and so for older youth in foster care there are potentially good reasons to try to find them guardianship rather than foster care as one way to achieve better outcomes."
Dr. Rubin went on to state that "even though we only found this among older youth, it’s an important finding that should have broader public policy implications. Overall, we couldn’t find any evidence that guardianship increased risk or that it’s somehow abandoned," adding that "it reinforces the importance of focusing on getting kids into permanent arrangements for those kids who can benefit from it. It’s not surprising; now we have some supportive data to go along with the stories we’ve been hearing."
Families who are considering adoption for their children should speak with an experienced child custody attorney.
Legal Guardianship vs Foster Care – What’s Right for You?
In determining what option is best for your circumstances, you should consider the following factors:
The well-being of the child and what is most likely to be in their best interest overall. This concept of "best interest" is not confined to the needs of a minor that can be quickly satisfied with money or a court order. The "best interest" of a child includes all considerations, including education, health, and emotional relationships.
The preference of the minor child in question, if they are old enough to express a clearly informed opinion. Since minors older than 14 years of age are entitled to notice of any kind of guardianship or conservatorship proceedings, a minor may petition the court directly to avoid any type of guardianship or conservatorship .
The relationship between the minor and the nominated guardians or conservators, including the expected or desired duration of that relationship.
The ability of the guardian or conservator to attend to the personal and financial needs of the child in question.
The idea of guardianship is not limited to the "what happens after Mom and Dad are gone" situation. For some parents, having legal guardianship in place during their lifetime allows for school choice or medical decisions in personal (as opposed to government) facilities during their extended business or health-related travel outside the state.
A properly-constructed in-state guardianship plan and guardianship filings can avoid the need for costly interstate custody disputes in the event of an emergency.