N.J. Admin. Code § 10:90-19.2

Current through Register Vol. 56, No. 21, November 4, 2024

Section 10:90-19.2 - Defining kinship legal guardianship

(a) "Kinship legal guardianship" is defined as a caregiver who is willing to assume care of a child due to parental incapacitation, with the intent to raise the child to adulthood, and who is appointed the kinship legal guardian of the child by the court pursuant to P.L. 2001, c. 250.

1. "Parental incapacity" means incapacity of such a serious nature as to demonstrate that the parent is unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child.

2. This form of legal guardianship provides permanency for children and stronger legal protection for caregivers, without termination of parental rights and adoption.

i. A kinship legal guardian shall be responsible for the care and protection of the child and providing for the child's health, education and maintenance.

ii. Under kinship legal guardianship, the child's parent(s) retain the power to consent to the adoption or name change of the child, the obligation to pay child support and the right to maintain a continued relationship with the child through visitation as determined by the court. An award of kinship legal guardianship does not limit or terminate any rights or benefits derived from the child's parents, including inheritance and social security or insurance benefits.

3. Any adult family friend or person with a biological or legal relationship to a child, other than the child's parent, who has been providing care and support for the child living in the caregiver's home for 12 consecutive months, may petition the court for kinship legal guardianship.

(b) Caregivers who have obtained other forms of guardianship through the Surrogate and Probate Departments of the Superior Court must receive kinship legal guardianship to be eligible to apply for the subsidy. A kinship legal guardian shall have the same meaning as the term "legal guardian," as defined in 42 U.S.C. § 675, except that the process, procedure and ruling for kinship legal guardianship shall be apart from and shall not amend, supplant or contravene 3B:12-1 et seq.

(c) The Superior Court, Chancery Division, Family Part has jurisdiction to award kinship legal guardianship. Consistent with rules and procedures adopted by the Supreme Court, the determination will be based on a petition filed by the caregiver that contains a kinship caregiver assessment certifying to the ability of the petitioner to care for the child. The assessment shall also contain the results from a criminal history record background check, domestic violence central registry check and a child abuse record check of the caregiver and any adult residing in the caregivers household.

1. The Department of Human Services (DHS) may, subject to the availability of funding, provide payments for assessments associated with obtaining kinship legal guardianship for caregivers meeting the definition of a Temporary Assistance for Needy Families (TANF) parent person with family incomes of less than or equal to 150 percent of the FPL. The costs for the assessment shall be borne by DHS in cases where an eligible individual is applying for cash assistance provided by the Division of Family Development for which kinship legal guardianship is a requirement and for the Division of Child Protection and Permanency cases. In cases where DHS is paying for the assessment associated with obtaining kinship legal guardianship, after filing an application for child support services the caregiver may contact the Kinship Navigator Program for a referral to an appropriate entity. The caregiver assessment shall be conducted by a designated entity contracted by the DHS or by the Division of Child Protection and Permanency.

(d) Kinship legal guardianship terminates when the child reaches 18 years of age or when the child is no longer continuously enrolled in a secondary education program, whichever event occurs later, or when kinship legal guardianship is otherwise terminated.

1. An order or judgment awarding kinship legal guardianship may be vacated by the court prior to the child's 18th birthday if the court finds that the kinship legal guardianship is no longer in the best interests of the child or, based upon clear and convincing evidence, the court finds that the parental incapacity or inability to care for the child that led to the original award of kinship legal guardianship is no longer the case, and termination of kinship legal guardianship is in the child's best interests.

2. An order or judgment awarding kinship legal guardianship may be vacated by the court if, based upon clear and convincing evidence, the court finds that the guardian failed or is unable, unavailable or unwilling to provide proper care and custody of the child, or that the guardianship is no longer in the child's best interests (see 10:90-19.3(h) ) .

N.J. Admin. Code § 10:90-19.2

Administrative change, 46 N.J.R. 855(b).