Laws on the Transfer of Legal & Physical Custody to a Relative
By Robin Elizabeth Margolis
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There are many reasons why you may be considering transferring custody of your child to other relatives. You may be chronically ill, struggling with addiction or facing criminal charges. Your may ask a relative to become your child's legal guardian, kinship foster parent or adoptive parent.
Physical custody is your right to give your child a primary residence. Legal custody includes all parental rights except physical custody, including determining what tradition or religion your child will be raised in, what school your child will attend and which doctors your child will see. If you transfer legal and physical custody of your child to a relative, you are temporarily or permanently giving up all of your parental rights.
Guardianship, kinship foster parenting and adoption each have their own required legal paperwork and court procedures that vary from one state to the next. When you decide which type of custody best suits your needs, you must look up your state's requirements for transferring your child to a relative within one of the three primary types of custody.
If a relative becomes your child's legal guardian, the arrangement can be temporary or permanent. Temporary guardianship is useful in situations lasting a few months to a year, such as your recovery from an illness. Your child is usually returned to you when the emergency situation is over.
When your relative becomes your child's permanent legal guardian, your child is under your relative's control until the age of 18. You may become a co-guardian, have only visitation rights or give up all parental rights. Be aware that a court may seek input on possible guardians from your child and your child may tell the court he wants a different relative or family friend as guardian.
Kinship Foster Parents
If your relative takes custody of your child through a kinship foster parenting program, your relative can receive foster parent payments. Your relative will have temporary physical custody of your child, but the state foster care agency will have legal custody; thus, your relative will have to discuss any major decisions about your child with the state agency. Eventually, your relative and the agency have to decide whether to return your child to you, make your relative the child's permanent legal guardian or adoptive parent, or place your child with another adoptive family.
Giving up your child for adoption by a relative means you permanently surrender all parental rights and your child becomes the legal child of your relative. Adoptions are rarely canceled so once your relative becomes your child's legal parent, the arrangement cannot be reversed. In most states, you cannot leave your child an inheritance, unless you specifically mention your child in your will.
- Child Welfare Information Gateway: For Relative/Kinship Caregivers
- DivorceNet.com: What's the Difference Between Physical and Legal Custody in New Hampshire?
- Findlaw.com: Child Custody -- Summaries of State Laws
- AARP: State Fact Sheets for Grandparents and Other Relatives Raising Children
- The Telegraph: Courtney Love Loses Custody of Daughter
Robin Elizabeth Margolis is a freelance writer in the Washington, D.C., area. She has been writing about health care, science, nutrition, fitness and law since 1988, and served as the editor of a health law newsletter. Margolis holds a bachelor of arts degree in biology, a master's degree in counseling and a paralegal certificate.