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30A.1
PURPOSE OF THE KINSHIP GUARDIAN ACT
The Kinship Guardianship Act, §§40-10B-1 to 40-10B-15, was enacted in 2001 to create procedures for establishing a legal relationship between a child and a kinship caregiver when the child is not residing with either parent. Kinship guardianships have been sought in large numbers since the Act was passed.
Kinship guardianship is not the same thing as “permanent guardianship” under the Abuse and Neglect Act. For someone to be able to petition the court for appointment under the Kinship Guardianship Act, the person must be an adult with whom the child resides. Kinship guardianship does not authorize the court to remove the child from the parents’ home. For further comparison with permanent guardianship under the Abuse and Neglect Act, as well as guardianship under the Probate Code, see Handbook §23.13.
30A.2 PROCEEDING
TO APPOINT GUARDIAN
30A.2.1
PETITION
Under the Kinship Guardianship Act, a caregiver with whom a child resides and who provides the child with the care, maintenance and supervision consistent with what a parent provides may petition the district court for guardianship. At the time of filing of the petition, the petitioner must obtain an order of the court setting a date for the hearing on the petition. The date must be at least 30 and no more than 90 days from the date of filing.
The caregivers who may petition for appointment are:
- a kinship caregiver (kinship meaning the relationship that exists between a child and a relative of the child, a godparent, a member of the child’s tribe or clan or an adult with whom the child has a significant bond);
- a caregiver age 21 or older with whom no kinship exists but whom a child age 14 or older nominates; or
- a caregiver clearly designated by a parent in writing. §§40-10B-5, 40-10B-4.
If an abuse or neglect proceeding is pending, the petition and notice of hearing must be served on CYFD. The petition and notice must also be served on the child if 14 years of age or older, the parents, any person with custody or visitation rights and, in the case of an Indian child, the tribe. §§40-10B-4 – 40-10B-6.
30A.2.2
APPOINTMENT
Under §40-10B-8, the court may appoint a guardian after hearing if:
- the parent consents in writing;
- the parent’s rights have been terminated or suspended by prior court order; or
- the child has been residing with the petitioner and without a parent for 90 days or more and the parent with legal custody is currently unwilling or unable to care for the child or there are extraordinary circumstances; and
- no guardian is currently appointed under the Probate Code (see Handbook §23.12).
The court must also find that the best interests of the child will be served by the requested appointment. §40-10B-9(A). The burden of proof is clear and convincing evidence, except in cases involving an Indian child, in which case the burden of proof is proof beyond a reasonable doubt. §40-10B-8(C).
If the child is 14 years old or older, the court must appoint the person nominated by the child unless the court finds the nomination contrary to the child’s best interest. The court may not appoint a person against whom the child has filed a written objection. §40-10B-11.
The court may order a parent to pay the costs of support and maintenance to the extent the parent is financially able to pay. The court may also order visitation between a parent and the child to maintain or rebuild a parent-child relationship if visitation is in the best interests of the child. §40-10B-8(D) and (E).
30A.2.3
REVOCATION
The guardianship can be revoked by order of the court. The person moving for revocation must attach to the motion a transition plan proposed to facilitate the reintegration of the child into the home of a parent or new guardian. The court may grant the motion if it finds that a preponderance of the evidence proves a change of circumstances and revocation is in the child’s best interest. §40-10B-12.
A guardian appointed under the Kinship Guardianship Act has the legal rights and duties of a parent except the right to consent to adoption and except for parental rights and duties that the court orders be retained by a parent. Unless the court otherwise orders, the guardian can make all decisions regarding visitation between a parent and the child. §40-10B-13.
30A.2.4
FORMS APPROVED BY THE SUPREME COURT
By order dated July 2, 2003, the Supreme Court adopted forms for use in kinship guardianship cases on a provisional basis. Form 4-209B was permanently approved without change on October 14, 2004. The remainder of the forms were approved with amendments and made effective January 20, 2005. The following forms are available in the Civil Forms:
- 4-209B Order for service of process by publication in a newspaper (guardianship proceedings)
- 4-981 Petition for order appointing kinship guardian
- 4-982 Summons kinship guardianship proceedings
- 4-983 Nomination of kinship guardian
- 4-984 Motion for appointment of temporary guardian
- 4-985 Parental consent to appointment of guardian and waiver of service of process (paternity admitted)
- 4-986 Parental consent to appointment of guardian and waiver of service of process (paternity not admitted)
- 4-987 Order appointing temporary kinship guardian
- 4-988 Order appointing kinship guardian by consent (paternity admitted)
- 4-989 Order appointing kinship guardian by consent (paternity not admitted)
- 4-990 Order appointing kinship guardian without consent of both respondents
- 4-991 Motion for revocation of kinship guardianship
30A.3
CAREGIVER'S AUTHORIZATION AFFIDAVIT
30A.3.1
PURPOSE AND EFFECT
Judges, advocates, social workers and parents should be aware of a temporary option available to parents and caregivers under the Kinship Guardianship Act. If the child lives with a caregiver who is a grandparent, aunt, uncle or other qualified relative (which may include an adult with whom the child has a significant bond), the caregiver may execute a caregiver’s authorization affidavit. The affidavit is valid for up to a year after the date on which it is executed. See §40-10B-15.
Execution of the affidavit does not make the caregiver a legal guardian. However, it authorizes the caregiver to enroll the child in school and to secure medical care, dental care and mental health care for the child to the same extent as a guardian under the Kinship Guardianship Act. Caregivers must be able to state in the affidavit that they have told the parents or other legal custodians and received no objection or that they have been unable to contact the parents or other legal custodians to notify them of the intended authorization.
Anyone who acts in good faith reliance on a caregiver's authorization affidavit to provide medical, dental or mental health care to a child is protected from criminal culpability, civil liability or professional disciplinary action. This protection applies even though a parent having parental rights or a person having legal custody has contrary wishes as long as the provider of services has no actual knowledge of those wishes.
30A.3.2
FORM OF THE AFFIDAVIT
The statute, §40-10B-15, requires that the caregiver's authorization affidavit be in substantially the form here.
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