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Permanent guardianship is a recognized permanency option for children and youth in foster care under certain circumstances. Prior to the Fostering Connections to Success and Increasing Adoptions Act of 2006, guardianships were granted with no financial assistance or with state-funded guardianship assistance in some states.  With the enactment of the new federal law, states now have the option of obtaining federal reimbursement for some of the costs of guardianship assistance for cases that meet the federal requirements.

Permanent Guardianship

Relatives and in some cases, non-relatives, of children in foster care can assume legal guardianship of a child in foster care.   A number of states have developed policies and procedures to assess the appropriateness of and implement a permanent plan of guardianship.

State Examples

Arizona has developed specific criteria for recommending a permanency plan of guardianship: 

  • The child is adjudicated dependent.
  • The child has been in the custody of the prospective permanent guardian for at least nine months as a dependent child.  The court may waive this provision for good cause.
  • Reasonable efforts have been made to reunite the parent and child and further efforts would be unproductive.  The court may waive this provision if the court finds that reunification efforts are not required by law.
  • Reunification of the parent and child is not in the child's best interests because the parent is unwilling or unable to care for the child.
  • The likelihood that the child would be adopted is remote or termination of parental rights would not be in the child's best interests.
  • The prospective permanent guardian has made a commitment to provide care and support to the child.
  • Guardianship is in the child's best interests.

The state also has detailed procedures for implementing a permanency plan of guardianship.

Delaware law specifically addresses  Permanency Guardianships for Children.   The law states that permanent guardianships are “intended to create a relationship between a child and caretaker which is permanent and self-sustaining and which creates a permanent family for the child without complete severance of the biological bond.”  The law states who may serve as a permanent guardian for a child (blood relatives, foster parent or parent); provides the required contents of a petition for permanent guardianship and the standard for granting a permanent guardianship; sets out the requirement for a social report prior to trial; and provides the permanent guardianship hearing procedures and notice requirements and the required content for orders granting permanent guardianships;  outlines the powers and duties of the permanent guardian and the duties and rights of parents; and describes how the permanent guardianship order may be terminated or modified.

Idaho’s policy defines “legal guardianship” as a judicially created relationship, including one made by a tribal court, between a child and relative or non-relative. The relationship is intended to be permanent and self-sustaining as evidenced by the transfer of the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person, and decision-making.”  The state’s policy addresses four permanency planning options and ranks guardianship as the third permanency option, following reunification and adoption.  The policy outlines the advantages of guardianship over termination of parental rights as well as the disadvantages of guardianship.  The policy includes best practice recommendations.  The state’s policy specifically addresses guardianship for American Indian/Alaskan Native youth. 

Maine statutorily details what a court must consider in appointing an individual to be  “a permanent guardian” for a child, the duties and powers of a permanency guardian,  parental and relative contact after a permanent guardian has been appointed, parents’ payment of child support to the permanent guardian,  the court’s jurisdiction over the permanent guardian,   how a permanent guardianship may be terminated, the effect of a permanent guardianship on inheritance rights and public benefits,  the resignation, death or incapacity of a permanent guardian, preferences that the court is required to follow in appointing a permanent guardian, and the court’s appointments of guardians ad litem and attorneys for the parties.

Michigan uses a Caseworker Permanency Planning Checklist to assist a caseworker in determining whether the child’s current caregiver(s) is appropriate for permanent guardianship.

New Mexico’s Child Welfare Handbook/Benchbook for its dependency courts details judicial procedures for Permanent Guardianship Hearings in Chapter 23.   The Benchbook addresses service and notice for these hearings, issues to be considered, evidence and burden of proof in permanent guardianship hearings, orders, periodic judicial reviews, revocation of permanent guardianship orders, and distinguishing guardianship under the Probate Code and the state’s Kinship Guardian Act.  A Permanent Guardianship Hearing Checklist is provided for judges. 

Oregon’s Department of Human Services’ Policy, Guardianship as a Permanency Plan, define “guardian” as “an individual who has been granted guardianship of a child through a judgment of a court.”  The policy addresses consideration of guardianship as a permanent plan, consideration of a substitute caregiver as a potential guardian, and approval and implementation of a guardianship permanency plan.

Washington State law addresses the requirements for a petition to establish guardianship and how these requirements relate to the Indian Child Welfare Act, provides the criteria to be used by a court to establish a guardianship, including a finding by a preponderance of the evidence that it is in a child’s best interest to establish the guardianship rather than to terminate the parent-child relationship and proceed with adoption or to continue efforts to return custody of the child to the parent;  and  outlines the rights and duties of the guardian, the court’s issuance of a letter to guardianship to the guardian, and the  procedures for dismissing a guardianship.

Permanent Guardianship Resources

California Department of Social Services.  Giving a Child a Home: Choices for Relatives.

A pamphlet for families that describes the differences among adoption, permanent guardianship and foster care.

Family Court of the State of Delaware.  Permanent Guardianship

A fact sheet for families that provides the state’s definition of permanent guardianship, the responsibilities of the permanent guardian, parents’ roles and responsibilities after permanent guardianship is granted, and the court’s criteria in granting a permanent guardianship.

Rhode Island Kids Count. Adoption and Permanent Legal Guardianship Fact Sheet.  

A fact sheet for caseworkers to use in providing caregivers with information on the options of permanent guardianship and adoption to support families in making a final decision in the best interest of their children.


Subsidized guardianship

Subsidized guardianships provide financial assistance to caregivers who assume legal guardianship of a child from out-of-home care.  Advocacy for subsidized guardianships for relatives of children in foster care began in the 1960s with the writings of Hassletine Taylor; continued with the work of Bogart  Leashore in the 1980s as he outlined the conditions under which guardianship might better serve the interests of children, parents, relatives and the state; and grew in the 1990s and early 2000s with the implementation of federal demonstration programs in several states.  Prior to the passage of the Fostering Connections to Success and Increasing Adoptions Act of 2006, a number of states had used state and local dollars to provide subsidized guardianship programs for eligible children and families to achieve permanency for children and youth who were not being adopted or reunited with family. 

The new federal legislation now provides federal reimbursement to States, Indian Tribes, Tribal Organizations and Tribal Consortia (“Tribes”) who choose to provide guardianship assistance payments for the care of children by relatives who have assumed legal guardianship of eligible children for whom they previously cared as foster parents.  Unlike Title IV-E Foster Care and Adoption Assistance, the Title IV-E Guardianship Assistance Program is an optional program for Title IV-E agencies.  States and Tribes must have an approved Title IV-E plan to administer or supervise the administration of the kinship guardianship assistance program. For those States and Tribes that opt to participate in the program, federal assistance may be used only to support the care of children discharged from foster care to legal guardianship who meet the eligibility requirements specified in the statute. Funds also may be used to support siblings of eligible children in certain situations as specified in the statute.

As of September 2011, 29 states had submitted Title IV-E plan amendments to enable them to make claims for federal support for guardianship assistance provided to eligible children and guardianship families.  As of that date, 22 States had been given final approval to implement this program. The National Resource Center on Permanency and Family Connections maintains up-to-date information on the states that have enacted laws and/or developed policies, regulations, or other materials related to the federal kinship guardianship assistance program.

State Examples

Idaho has had a guardianship assistance program since the mid 1990s.  The state funded program was not restricted to relative guardians but it did require that the child’s parents’ rights must have been terminated. With an approved plan to provide a federally supported kinship guardianship assistance program, Idaho has developed standards for guardianship assistance that address the negotiation of a Guardianship Assistance Agreement and the development of alternate care plans.  The standards include a flow chart that provides the steps that are to be taken from the time the permanency goal is changed to Legal Guardianship to the finalization of the Guardianship. 

Maryland has developed a Policy Directive on the implementation of its Guardianship Assistance Program.  The Policy Directive provides detailed procedures on negotiating and finalizing federally supported guardianship assistance payments for eligible children and families.

New Jersey’s Policy and Procedures Manual addresses the requirements for its Title IV-E Kinship GAP Program.  It specifies the procedures for entering into a Kinship Guardianship Agreement and for making the assistance payments.

Oklahoma law addresses permanent guardianship that is non-funded or funded through supported permanency (TANF), Title IV-E, or state subsidy.  State law on Title IV-E subsidized guardianship parallels the requirements of the Fostering Connections to Success and Increasing Adoptions Act of 2006.  The law includes “Instructions to Staff” that includes the specific procedures for requesting and obtaining approval of assistance for permanent guardians.

Oregon’s policy and procedures describe the state’s Assisted Guardianship program, including the procedures for determining eligibility and family interest, scheduling branch guardianship review committee meetings, meeting with the prospective guardian, completing the application and obtaining central office approval, and obtaining the final guardianship order from the court. Oregon has developed a range of forms, including a Guardianship Assistance Application and an Agreement for Assisted Guardianship.

Pennsylvania’s  policy on Subsidized Permanent Legal Custodianship (SPLC) addresses both non-recurring costs associated with a SPLC and the requirements for the federal SPLC.

Subsidized Guardianship Resources

Child Focus and Children’s Defense Fund.