Making the Decision

Making the Decision to Care for the Child

North Carolina Legal Options for Kinship Caregivers

It is not always clear which legal permanency option is best for you and your loved one. Kinship care has many benefits. It is less traumatic for the child, maintains the child’s history and culture, and allows the family memories to be passed on. However, if you care for the child for long, you will likely need to decide how much authority and legal permanency you need to raise this child. The challenges of kinship care can make this a difficult decision. Any decision you make will impact every family member: the child, the child’s parents, you, your other children, your spouse or partner, and the entire extended family. Kinship caregivers often feel a mix of complex emotions that can get in the way of making the best decision, including guilt, anger, sadness, and fear. Your history with the child’s parent can also interfere, but ultimately, you need to make a decision that is in the child’s best interest.

Questions to Ask When Thinking About Your Options

1. Can you?

Can you adequately take care of this child? Answer the following questions:

a. Do you have the physical, emotional, and financial ability to parent now and as the child ages? You must assume this child will have unique needs, including mental health and educational struggles.

b. What services and support will you need? Can you find and afford these services and support? (For example, daycare, respite, mental health services, etc.) Which of the legal permanency options will help you afford and find these services?

c. Do you have time to care for a child and provide for their physical, emotional, educational, and spiritual needs?

d. Do you have support from your family, community, church, and friends?

2. Should you?

Should you become a caretaker for this child? Many grandparents and other kin feel they don’t have a choice, but obligation and guilt are not enough for the long term. You must assume you are making a longer-term commitment, and it is fair to ask if you are the best person to do this. Is someone else in a better position to take the primary responsibility while you play a supporting role?

3. Can you continue?

Even if you are already caring for this child, you must ask if you are the right person for the future. Are you in the best position to continue to be the primary caretaker for this child? Circumstances change, and both you and the child will continue to age. Are you still the best person to be raising this child?

Only when you ask these questions can you decide which legal permanency option will be best to help you be the best caregiver possible for this child.

“It’s hard to feel like you have to choose your grandchild over your child.”

Which Permanency Option Is Best?

Rule of Thumb

The more troubled the relationship with the child’s parent is, or the more fearful you are for the child’s safety, the more permanency you will need.

You can have a less formal or permanent option if:

  • Your relationship with the child’s parent is good,
  • and you can agree most of the time on how to raise the child,
  • and the child’s parents willingly abide by your rules for visitations and what they can do with the child.

What’s the Right Choice?

If Child Welfare Is Not Involved

Whether to provide care for the child inside or outside the child welfare system is often not your choice. If you step in and take the child before child welfare is involved, you will likely be unable to get the Department of Social Services (DSS) involved because the child is now safe.

When is an informal agreement the appropriate option?

  • The child’s parent is available and capable of parenting and making parental decisions, but the child is living with you.
  • Unless the parent is actively involved in all decisions, it is best to get at least a Power of Attorney as soon as the child begins living with you.

When is a power of attorney the most appropriate option? 

  • You and the child’s parents believe this will be a temporary living arrangement, and you agree that living with you is best.
  • The child is living with you, and the child’s parents are not readily available to make all necessary decisions, such as medical and educational.
  • The Department of Social Services (DSS) is not involved and has not removed the child from their parent’s care.
  • You can get the parents to sign the Power of Attorney and notarize it.

When is civil court custody the most appropriate action?

  • The child will be living with you for the foreseeable future. 
  • The child’s parents are either not around or unable to make good decisions for the child. 
  • You want clear, enforceable guidelines regarding where a child will live, visitation by the parents, child support, etc. It takes some of the ongoing negotiations and guesswork out of the relationship between you and the child’s parents.
  • You don’t want to terminate parental rights, which is required with adoption, because: 
    • You believe (and hope) that the child can return to the parents’ care one day. 
    • You hope the child’s parent will be more willing to consent to custody since it does not terminate their rights, saving you time, energy, and money. 
  • You believe it is in the best interest of the child or the family not to adopt because adoption will change the relationships within the family. For example, you want to remain “Grandmom” rather than “Mom.” Or the extended family does not support adoption but would support custody. 
  • The child does not want to be adopted. 

When is civil court adoption the best option? 

  • You believe the child’s parents will be unable ever to raise them.
  • You want the greatest degree of permanency, so you don’t have to worry about the child’s parents taking them away.
  • You can hire an attorney to help process the adoption.
  • The child wants to be adopted.
  • Your family supports you in adopting the child.

If Child Welfare Is Involved

When is becoming a licensed foster parent for the child the most appropriate choice?

  • You want the services, support, and education provided to foster parents.
  • You want the monthly board payment for foster parents to help you care for the child.
  • You want the child to be able to access the benefits provided for youth in foster care when transitioning to adulthood. Some benefits are only available to the youth if you were a licensed foster parent.
  • You would benefit from the support of child welfare to help navigate visitation and boundary setting with the child’s parents.
  • You are willing for you and the other adults in the home to have a federal and state background check.
  • Your house can meet the safety requirements for foster homes. However, if some licensing requirements are too difficult for you and unnecessary for the child’s safety (for example, having a certain number of bedrooms), the licensing agency may request a waiver.
  • You are willing to follow the Department of Social Services (DSS) rules, such as no spanking and no smoking in the home.

When is juvenile court custody the most appropriate choice?

Sometimes juvenile court custody is the only option to move the child out of foster care, but it is usually better to ask for guardianship instead of custody because guardianship may provide you and the child with more services and protection.

When is juvenile court guardianship the most appropriate choice? 

  • Guardianship can be appropriate for families who do not want to alter the family’s legal relationships through adoption. For example, if you don’t want to change from being “Grandmom” to “Mom” or don’t want to change the child’s last name.
  • You believe it is in the family and child’s best interest not to terminate parental rights.
  • The child doesn’t want to be adopted.
  • Your family is not supportive of you adopting the child.

When is juvenile court adoption the most appropriate choice? 

  • You want the greatest protection from the child’s parents taking the child away from you. This is low-risk with guardianship, but adoption has even less risk.
  • You want the monthly adoption financial assistance payments and access to the post-adoption services provided by child welfare.
  • You want to have total control over the child’s parent’s involvement, at least up to the time when the youth will make this decision for themselves. (You can allow the child’s parents to be as involved as you think is in the child’s best interest, but the choice is yours.)
  • You want the child to be entitled to all the benefits available to a child born to you, such as the right to be on your health insurance through your employer, the right to your Social Security and pension benefits if you die, and inheritance rights if you die without a will.
  • You want to determine who will care for the child when you die.
  • You want to receive the federal Adoption Tax Credit for each of the children you adopt. It’s a dollar-for-dollar reduction in the amount of federal taxes you owe.
You're Not Alone. Kinship Caregivers. Listen to their stories.

NC Legal Options for Kinship Caregivers

Legal Options Quiz

Child Welfare Not Involved

Child Welfare Is Involved

Making the Decision

Finding an Attorney

Kinship Advisory Committee

Additional Resources

*Not Intended as Legal Advice