In the State of New Jersey, many relatives and close family friends are caring for children whose parents are incapacitated by conditions such as physical or mental illness, addiction, incarceration, or economic hardship. In some cases, New Jersey DCP&P places children with these caregivers through the foster care system. In other cases, such arrangements begin informally.
When a temporary arrangement becomes long-term, some type of formalization may be in the child’s best interests. Both adoption and kinship legal guardianship provide a child with more stability, and allow caregivers more autonomy over decision-making, than either informal family arrangements or foster care. Adoption transfers all rights and responsibilities from birth parents to adoptive parents and requires termination of the birth parents’ rights. In cases where adoption is not feasible or likely, a caregiver can petition the court for appointment as a kinship legal guardian. If the court agrees, the birth parents will no longer have legal custody of their child, but will still retain some rights under the law. The kinship legal guardian gains primary responsibility for decision-making, and also becomes eligible for state subsidies to help defray the cost of raising the child.
Eligibility for New Jersey Kinship Legal Guardianship
Anyone who is caring for a child in the State of New Jersey can apply for kinship legal guardianship if certain criteria are met, including:
- The child has been under your care for at least 12 months;
- The biological parents of the child cannot care for the child;
- You are related to the child or are a family friend;
- You are financially able to care for the child; and
- It is in the child’s best interest to remain in your care.
Differences Between Kinship Legal Guardianship & Adoption
Kinship legal guardianship is more stable than foster care, which is intended to be a temporary measure and which includes strict state oversight of the foster parent-child relationship. Unlike adoption, however, which is virtually always irreversible, kinship legal guardianship is only effective until a child turns 18 or graduates from high school, and it remains reversible until that time. If a parent regains the ability to care for a child, and can demonstrate this to the court by clear and convincing evidence, the court will vacate the guardianship, provided that this is in the child’s best interests.
Unlike adoption, kinship legal guardianship does not sever all birth parents’ rights. Birth parents retain the right to visit the child, as well as the right to decide whether or not a child can be adopted or have a name change. The birth parents also remain responsible for providing the child with financial support if possible.
Unlike a legal guardian, an adoptive parent has the right to transfer custody or legal authority over the child to another person and to make plans for the care and custody of the child in case of death or incapacitation. Adoption also transfers the child’s rights to inherit or receive government benefits from the birth parents to the adoptive parents. The adoptive parents and not the birth parents have the authority to decide whether or not to allow contact between the birth parent and the child.
For more information on relatives adopting children, see: New Jersey Grandparent and Relative Adoptions.
New Jersey Kinship Legal Guardianship Rights
Except for the limitations noted above, the New Jersey statute governing kinship legal guardianships provides that a kinship legal guardian shall have the same rights, responsibilities, and authority as a birth parent, including:
- Making decisions regarding the child’s care and well-being;
- Consenting to routine and emergency medical and mental health needs;
- Arranging and consenting to educational plans for the child;
- Helping a child apply for admission to college;
- Ensuring the child’s safety; and
- Ensuring the maintenance and protection of the child.
For more information on kinship legal guardianship, you can contact DCP&P’s Kinship Navigator Program.
Becoming a New Jersey kinship legal guardian is a serious responsibility and one that the New Jersey courts do not grant lightly. If you are not a child’s biological parent but are the caregiver considering kinship legal guardianship, it is important to work with a seasoned New Jersey guardianship attorney who can help you determine whether or not New Jersey kinship legal guardianship is an option that is right for you. The experienced New Jersey kinship legal guardianship lawyers at Weinberger Divorce & Family Law Group, LLC are available to help you through this legal process. Please contact us to schedule your initial consultation. Take the first step. Call us today: 888-888-0919.