public welfare agencies (the cases were just reported as investigated and not needing further intervention) it is impossible to know how many children ended up in a relative’s care through minor guardianship at the behest of a public welfare agency, or by a family to avoid the threat of a child’s removal by the same). See NAT’L COAL. FOR CHILD PROT.REFORM,TEXAS HIDE ‘EM:NEARLY TWO-THIRDS OF STATE’S FOSTER CARE PLACEMENTS ARE “OFF THE BOOKS” (2016), https://www.nccprblog.org/2016/04/texas- hide-em-nearly-two-thirds-of.html (“Kinship care almost always is a better, safer option than stranger care. But it is still foster care.”).
222 George K. Belcher, Custodial Kinship Guardianships for Minors: A Response to Zalenski, 38
VT.B.J. 25 (2012) (emphasis added).
223 Id. at 25.
224 Gupta-Kagan, supra note 166, at 62. 225 Weisz & McCormick, supra note 18, at 197.
226 Gupta-Kagan, supra note 166, at 61 (noting that research indicated that only a quarter of children
in foster care lived with relatives).
227 Weisz & McCormick, supra note 18, at 197 (noting a shifting in the numbers of children in Los
Angeles County living with relative caregivers rather than foster care); Duques, supra note 6, at 91.
228 AECF, supra note 158, at 4. Guardianship as private child protection was a trend also consistent
with and embraced by the goals and positions of grandparents’ advocacy groups. See, e.g., AM.ASSOC. OF RETIRED PERS.,RAISING GRANDKIDS:LEGAL ISSUES, https://www.aarp.org/relationships/friends- family/info-08-2011/grandfamilies-guide-legal-issues.html.
229 Berrick & Hernandez, supra note 7, at 26. Smith, supra note 23, at 87 n.272. Both of these data
sets suggest that at least 75-80% of guardianship matters are uncontested. See also Belcher, supra note 222, at 25.
2019] KEEPING IT IN THE FAMILY 307
so they can resume custody of their child in the future.”230 While that may
be the aim of many guardianship petitions, for many other families, as we will explore in the Part III, the reality is more complicated.
In the 1980s, some states enacted a new form of private guardianship— the “standby guardianship”—for the specific purpose of enabling families to avoid state intervention when the need for a guardianship could be anticipated, for example, in single-parent families where the parent had AIDS or another potentially fatal illness.231 Such appointments enabled a
parent to ensure that a guardianship was in place and that a person of their choosing could assume the role of substitute parent if the parent became physically unable to care for the child or died232 while at the same time
preventing the child from entering foster care or being cared for by an adult with no legal authority.233 As this approach has been available, however,
only to a small, narrowly defined set of families,234 the traditional form of
minor guardianship has remained the legal route best suited for pursuing child protection while keeping it in the family.
c. A Route for Some Relative Caregivers to Obtain Custodial Rights
As courts saw more intrafamilial litigation and conflict over the question of who is a “parent,” many relatives caring for children saw guardianship as a route for obtaining legal rights with respect to those children without having to meet the difficult standing and other requirements to establish parentage. When kinship care is provided informally, the household can be subject to “upheaval at the whim of the children’s parent,” as one commentator has described it; that is, if the parent returns from an absence and demands custody of their child.235 Another observed: “Only a court’s
230 ELROD, supra note 80, at 4:6. See also Gleeson & Seryak, supra note 9, at 90–94 (describing
research findings regarding views of parents of children in informal kinship care).
231 HARALAMBIE, supra note 11, at § 11:6. This form of appointment was included in the UNIF.
PROBATE CODE § 5-202(c), and the UNIF. GUARDIANSHIP,CONSERVATORSHIP, & OTHER PROT. ARRANGEMENTS ACT §207.
232 These are distinct from a delegation of parental authority, which is not a court appointed
guardianship, and it most useful for travel, military service, or temporary illness. HARALAMBIE, supra note 11, at § 11:5; UNIF.PROBATE CODE § 2-105. The parent’s rights are unaffected and can be exercised in conjunction with the delegate.
233 McConnell, supra note 18, at 255-61. A 1992 report by an epidemiologist in the Journal of the
American Medical Association estimated that 83,000 minor children in the U.S. would lose their mothers to AIDS. Id. at 257 (citing David Michaels, Estimates of the Number of Motherless Youth Orphaned by AIDS in the United States, 268 JAMA 3456 (1992)).
234 The appointment of a stand-by guardian is triggered only by death or medically-documented
incapacity of the parent. UNIF.PROBATE CODE § 5-202(c). The UGCOPAA provision broadened the potential contexts in which a parental appointment could take effect. UNIF. GUARDIANSHIP, CONSERVATORSHIP,&OTHER PROT.ARRANGEMENTS ACT §207. Either provision requires both advance planning (and therefore access to legal knowledge and services) and parental consent, either of which are frequently absent by the time a crisis is identified, thus limiting its use in a wide range of contexts.
235 Rudasill, supra note 192, at 218, 273; see also Gupta-Kagan, supra note 166, at 46; RELATIVES
308 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 18.2
custody order can protect children from the uncertainty and potential risk” of being “bounced from parent and grandparent and back again.”236
Adoption is not usually the best option for the relative caregiver as it is a winner-take-all contest that pits the caretaker, perhaps a grandparent, against the parent, perhaps the caregiver’s own adult child, and requires them to seek termination of the parent’s rights.237 Third-party custody laws often require
the relative to “frame their claims to rights as parental claims,” which is not generally how the caregivers regard their role.238 For many relative
caregivers, by allowing the relative to attain full authority over a child’s care, guardianship is a better route to address concerns about stability and the specter of the “reappearing parent.”239 Guardianship suspends but does not
permanently terminate a parent’s rights. For that reason, parents are more likely to consent to the appointment of a guardian than to an adoption240 or
to a court order that provides permanent parental status to the relative. Because a relative caregiver seeks status as a substitute parent—rather than sharing custody and other rights with a parent—guardianship is a more appropriate mechanism than custody laws for private child protection when a parent’s abilities are limited. Deriving from the traditional tool to aid a minor in the exercise of property ownership, the focus of minor guardianship is on the child’s needs and the parent’s limited ability to meet them. In guardianship appointments, the relationship between the child and the petitioner is not a central question.241 While courts prefer to appoint relatives
or other adults who have some prior relationship with the child—and some laws contain explicit preferences for certain relatives, such as