Types of Custody
1. Guardianship
A legal procedure in Kentucky that gives a caregiver a legal authority to take a child for medical care and to sign for school-related activities. This doesn’t suspend the parental rights.
To file for guardianship, you must go to District Court (unless done in family court in an active DCBS case) and file a petition. If the parents will not be in court for the hearing, you must provide a notarized letter from one or both parents stating that you are caring for the child, or provide a certified letter sent to each parent’s last known address telling them of the court date and reason for it. This must be done prior to the court granting any guardianship. The judge must make the decision and you should have formal paperwork from the proceeding outcome. To apply, call your local courthouse and usually the local county attorney will provide assistance.
Note: There will most likely be court fees but this can be done without an attorney. If you cannot afford to pay these fees ask about an “in forma pauperis” statement at the time you file. If you qualify for “in forma pauperis” the above fees may be waived.
2. Informal Custody
Informal custody is an arrangement that is not within the court system and in most cases an arrangement by the caregiver and the parents or formal guardian. In order to make sure that the informal caregiver ensure that the child is enrolled in school and will receive health care, it is recommended to get a Caregiver’s Authorization Affidavit. The Caregiver’s Authorization Affidavit serves as a template for caregivers without legal custody to get the authorization needed to address the educational and/or medical needs of the children they are caring for. The form was created in order to help relative caregivers easily without consulting an attorney. This form can be found at http://kinshipky.org/forms/. The affidavit is good for one year and must be notarized. It can be renewed annually unless revoked by parents, de facto custodian, guardian or legal guardian.
3. Temporary Custody
Temporary custody is much different from guardianship in that the parental rights of the natural parent have been suspended (not terminated), and you must assume the legal rights and obligations that accompany full-time care of the child. Temporary custody is viewed as temporary because the court is hoping to return the child to the custody of the parents at a future date, but this is not always the case. The child can remain in your custody until he or she is eighteen years of age on a temporary custody order. Often times as the case progresses and at closure, if the child is going to remain with you permanently, you should receive the status of permanent custody. You must comply with the court established guidelines for care.
4. Relative Foster Care
Foster care is an option where you can continue to care for the child and receive assistance as regular foster parents do. This is possible when the Cabinet for Health and Family Services has custody of the child. You will have to complete training and meet eligibility requirements. The foster care placement status remains until the case is closed and permanency is achieved. If a child ages out at age 18, there may be additional benefits or options for the child to access. Talk with your social worker and make sure you understand everything before you sign any paperwork. On the KYFaces website, there is a video that explains further – go to “Foster Care/Adoption” tab and then to “Videos”: https://prd.webapps.chfs.ky.gov/kyfaces/Home/Videos?tab=kinship.
5. Permanent Custody
Permanent custody is one step further than temporary custody in that it is not as likely the parent will regain custody.
Note: The parents can always petition the court to revisit custody arrangements. There can also be varying types of permanent custody. Sole custody is that you solely have the child but there can be shared custody depending on the court’s determination regarding visitation.
6. Adoption
Adoption is the legal recognition of an individual as the child’s parent. This process terminates all natural parental rights, including the right to visitation as well as all financial obligations to the child. The adoptive parents assume all of these rights as well as responsibilities. Adoption is the only way you can guarantee that the biological parent(s) will never regain custody. Pursuing adoption can create additional challenges and necessitate legal counsel. Because adoption is permanent, there will be many opportunities given to the parent to be reunited with the child, especially if the parent is contesting the process. To allow for adoption, the parent must voluntarily terminate his or her own rights or be proven unfit, and the court must then legally recognize the termination.
Every situation has different circumstances, so it is important that you discuss your particular circumstances with an attorney. You must have an attorney to file for adoption, as all legal steps must be taken. Also be sure to discuss any financial concerns prior to filing for adoption – this can save you much time and frustration later! For most relative caregivers, there isn’t much legal support for adoption but always check with your social worker and local legal aid office to make sure.
For those who are kinship foster parents under the federal Family First Act, adoption support may be provided. Ask your social worker upfront.
7. What is a De Facto Custodian?
A de facto custodian is a person other than a biological parent who has been the primary caregiver and financial supporter of a child for six months if the child is 3 years old or less or a financial support for a year or more for a child older than three years old. A de facto custodian has to be recognized by a court and it allows them equal status as the biological parents in court. Often times, in normal family court proceedings, de facto custodianship is not required but different circumstances may present themselves in such a way that you want to pursue this status. For more information and understanding you can ask your social worker or consult an attorney. Kentucky House Bill 1 of 2018 provided a $500 credit for legal support for de facto status. Ask an attorney about this credit.