Although most parents have the best intentions when it comes to their children, there are circumstances that can prevent them from giving their children the proper care. Circumstances such as job loss, mental illness and physical disabilities are often unexpected and not within their control. Parents can, however, make selfish or unsafe decisions that can affect their children's well-being. Fortunately, many of these parents make the choice to allow relatives or friends to take care of their children. If you are one of these caretakers, you may have thought about asking the court for custody, at least on a temporary basis.
New Jersey allows long-term caregivers to be appointed as a child's guardian through the kinship legal guardianship program. In spite of its name, a guardian does not need to be related to the child. The qualifying conditions for legal guardianship are as follows:
- The child has been living with you for at least 12 months.
- Both parents are incapable of taking care of the child.
- You are related to the child (biologically or legally), or a family friend.
- It is in the child's best interest to stay with you.
- You meet the financial eligibility requirements.
These requirements can be explained to you in detail by an experienced family law attorney. Although it's not required, working with an attorney is the best way to ensure that you understand your rights and legal options. Like most family court-related actions, legal guardianship involves a level of subjectivity, which can be seen in requirements such as "the child's best interests". Proving such a requirement requires extensive legal knowledge and trial experience, especially if the parents do not wish to give up their custodial rights.
Your attorney will further elaborate on the issue of custodial rights, which allows you to assume the same rights and responsibilities of a birth parent. These rights, however, do not negate the biological or legal parents' parental rights, which gives them the right to visit the child, and disagree to any motions for adoptions or name changes. Furthermore, either parent can seek to end the guardianship through a court motion. The courts will require the parent to show "clear and convincing evidence" that he or she is able to take care of the child, or that the legal guardian is incapable of taking care of the child.
In addition to your legal advice, your attorney can walk you through the process of becoming a legal guardian. Prospective guardians must be assessed by an agent from the Department of Human Services' Kinship Navigator Program. You won't have to pay for the assessment if your family income is less than or equal to 150 percent of the federal poverty level, but you will need to complete this step before you can file a petition for guardianship. For a full explanation of the filing process, as well as information about subsidy programs for financial assistance, please speak with the family law attorneys of Villani & DeLuca, P.C.