Introduction
- In 2020, 34 percent of all children in foster care in the United States were placed with kin––approximately 137,000 children.[1]
- The number of children in foster care living with kin has increased by eight percentage points since 2010.[2]
Despite the prevalence of kinship care arrangements both in and outside of the foster care system, there are many contexts in which the law does not recognize fictive kin relationships. A fictive kin relationship is one that a child has with “an individual who is not related by birth, adoption, or marriage to a child, but who has an emotionally significant relationship with the child.”[3] Not legally recognizing these relationships harms children involved in the child welfare system by preventing their placement with people who can most effectively care for them. Many children have bonds with family friends that are just as strong as those others have with blood relatives. Therefore, placing these children with the people who can best care for them requires laws that treat fictive kin the same as relatives.
One context in which it is important for fictive kin to be included in the definition of “relative” is under the Adoption and Safe Families Act (ASFA). According to ASFA, if a child has been in foster care for at least 15 of the past 22 months, the state must file a petition to terminate the parents’ rights and concurrently work on finding an adoptive family.[4] However, an exception can be made if “the child is being cared for by a relative.”[5] ASFA does not define “relative,” so states use their own definition of “relative” in implementing this policy.[6] Some states’ definitions are relatively narrow and exclude fictive kin relationships. One example is Alabama, which defines “relative” for purposes of the Kinship Foster Care Program as “an individual who is legally related to the child by blood, marriage, or adoption within the fourth degree of kinship.”[7] Other states’ definitions are broader. For example, Maryland’s includes any adult “related by blood, marriage, or adoption within the fifth degree of consanguinity or affinity” or “who makes up the family support system, including adults related beyond the fifth degree of consanguinity or affinity, godparents, friends of the family, or other adults who have a strong familial bond with the child.”[8]
The Fostering Connections to Success and Increasing Adoption Act does not define relative for the purpose of determining eligibility for the federal Guardianship Assistance Program (GAP).[9] Therefore, states have broad discretion to define “relative” in the context of this policy. A 2017 study of all 50 states and Washington, D.C. found 41 states allowed a relative or fictive kin to serve as a child’s guardian, while 10 states required a prospective guardian to be related to the child by blood, marriage, or adoption.[10] Additionally, many states narrowly define “relative” to include only those related by blood or marriage for the purpose of notifying relatives when a child is placed in agency custody as required by the Fostering Connections Act.[11] As a result, fictive kin often do not become involved or care for the child because they do not know about the child’s placement.
This article explores several reasons why states should either (1) include fictive kin in the definition of “relative” for purposes of ASFA, GAP, kinship foster care, and child placement, or (2) define “fictive kin” in their statutes and then apply all policies regarding relatives to relatives and fictive kin equally. These reasons include:
- support among experts for recognizing fictive kin relationships;
- the need to acknowledge the prevalence of fictive kin relationships, especially in the Black and LGBTQ+ (lesbian, gay, bisexual, transgender, questioning and others) communities; and
- potential improvements in permanency and stability for system-involved children, especially children of color.
Support for Recognizing Fictive Kin Relationships
Leading national child welfare policy organizations in the United States support including fictive kin in policies affecting families. The Child Welfare League of America (CWLA) defines kinship care as “the full-time care, nurturing and protection of children by relatives, members of their tribes or clans, godparents, stepparents, or any adult who has a kinship bond with a child.” CWLA notes that this definition includes all cultures and emphasizes fictive kin relationships as well as blood relationships.[12] Similarly, the American Law Institute’s Principles of the Law of Family Dissolution recognize nonrelated individuals who function as parents with the concepts of the parent by estoppel and the de facto parent––people who are not legal parents under state law but have lived with the child for a significant period and acted as parents.[13] Several state courts recognize nonrelated parental figures as legal parents under these theories.[14] Additionally, several states, including California, Virginia, Washington, and Maryland, allow virtually any person with a legitimate interest to file for custody of a child. This allows people who are not relatives of a child by blood or marriage to seek third-party custody if a child cannot safely remain with his or her parents.[15]
These developments have occurred for several reasons. Changes in gender norms have led to recognizing parenting practices in single-parent families and same-sex, two-parent families.[16] Policymakers have also started prioritizing kin placement for children involved in the child welfare system because of research showing kin placement provides children more stability, stronger well-being and behavioral health outcomes, and a higher likelihood of achieving permanency.[17]
Prevalence of Fictive Kin Relationships in the Black and LGBTQ+ Communities
Black families typically define “family” more broadly than White families, making fictive kin particularly important to Black children. The Black community has long traditions of fictive kinship care[18]––ethnographic researchers have found that relationships among fictive kin in Black families “are as strong and lasting as those established by blood.”[19] Black families often develop fictive kin relationships with their friends and neighbors and may even give them kinship titles such as “aunt” or “uncle.”[20]
The importance of fictive kin in the Black community has strong historical roots. During slavery, Black children were often left without parents but found fictive “aunts and uncles” who acted as parents to them.[21] Adult slaves relied on “networks of mutual obligations” for their children’s safety and nurturing.[22] When Black families began to move north in the second half of the nineteenth century, leaving behind their home communities and extended families, they again relied on fictive kin to help raise their children.[23] This system supported development of complex family structures and helped Black families advance financially and socially.[24]
Today, fictive kin relationships continue to be crucial to childrearing in the Black community. Black families often engage in “othermothering,”[25] relying on both relatives and fictive kin to meet their children’s physical and emotional needs.[26] Othermothering has occurred not only informally, but also through institutions such as churches, women’s clubs, and community service organizations.[27] While Black children make up 14 percent of children in the U.S., they make up 25 percent of children being raised in kinship arrangements, whether in or outside the child welfare system.[28]
Like Black Americans, LGBTQ+ individuals often have relationships with fictive kin that resemble those of relatives. Fictive kin are therefore likely to be extremely important to children raised by LGBTQ+ parents. Because same-sex marriage was prohibited in the past, lines between friendship and romance and between friendship and family are more blurred in the LGBT community than in heterosexual culture.[29] Families of choice in the LGBT community can include “lovers, ex-lovers, friends, co-parents, gamete-donors, and children brought into the family through adoption, foster care, prior heterosexual relationships, and alternative reproduction.”[30] Families of choice provide emotional support, economic cooperation, and socialization.[31]
Anthropologist Kathy Weston explains that LGBTQ+ people’s “chosen families” may consist of people in multiple households, giving an example of a lesbian couple and a gay man with whom they share childcare responsibilities considering themselves family.[32] It is common for members of the LGBTQ+ community to develop unique family formations to care for their children––children of LGBTQ+ people are often coparented by more than two parents or more than one couple.[33] Therefore, including fictive kin in the definition of “relative” would help ensure these children have the opportunity to be placed with a person with whom they have a strong relationship in the event that they are not able to be with their parents.
Benefits of Recognizing Fictive Kin Relationships for System-Involved Children
Increase subsidized guardianship as a permanency option.
Allowing fictive kin to be considered relatives improves state child welfare outcomes in several ways. In the context of subsidized guardianship, expanding the definition of “relative” to include fictive kin would maximize the amount of federal funding provided for subsidized guardianship by expanding the pool of potential eligible guardians.[34] This increased funding would help ensure permanency for more children. Additionally, placement with fictive kin can help children avoid trauma resulting from being placed with strangers.[35] Allowing children to be placed with fictive kin could also help alleviate recruitment and retention issues facing foster care agencies––while the number of children entering foster care increased each year from 2013 to 2017, at least half the states in the U.S. experienced a decrease in the number of available foster homes during that time.[36]
Strengthen youth autonomy.
Including fictive kin in the definition of “relative” would also give youth more autonomy. A youth may communicate that he or she prefers to live with a certain fictive kinship caregiver. Such preferences should be considered by courts to ensure that both placement and guardianship decisions are made in youth’s best interests.[37] Placing youth with caregivers with whom they feel comfortable and safe has been shown to lead to improved stability and long-term outcomes.[38]
Expand kinship care benefits.
Placing children in care with fictive kin would also increase their chances of experiencing the benefits of kinship care. According to the Coalition to Protect Maryland’s Children, it is important for youth to have “stable, responsive relationships with caring adults at home … For many youth, fictive kin are as much a family member as kin related by blood or marriage. Allowing fictive kin to serve as kinship guardians provides the youth with a source of stability.”[39]
Strengthen kinship caregiving options and child welfare outcomes for Black children.
Including fictive kin in the definition of “relative” would especially benefit system-involved Black children. This is not only because of the significant role fictive kin play in the Black community, but also because of the disadvantages Black children face in the child welfare system. Black children are disproportionately represented in foster care and enter the system at a higher rate than White children.[40] Because there are not enough foster families to care for these children, many of them will enter institutional care.[41] Additionally, the median length of stay in foster care for Black children is one-third longer than the national median, and Black children are three times more likely than White children to remain in long-term foster care.[42] Black children face additional barriers in the context of adoption. Black children make up almost half of the children available for adoption, and they wait twice as long as White children to be adopted.[43] This problem is exacerbated by the fact that agencies often deny White people who are willing to adopt a Black child the chance to do so.[44] Because of these factors, allowing fictive kin to care for or adopt children would reduce the number of Black children placed in institutional care or left in long-term foster care.
Call to Action
States that have not already done so should amend their laws to treat fictive kin the same as relatives in the contexts of kinship foster care, placement resources, ASFA, and GAP. This policy change is essential to the well-being of numerous system-involved children. It will also align state laws with current legal thought on fictive kin relationships, support fictive kin caregiving arrangements in the Black and LGBTQ+ communities, and enable agencies to make decisions that are truly in the best interests of the children they serve.
State statutes regarding fictive kin illuminate some ways in which child welfare practice could be improved to reflect current knowledge regarding fictive kin. Some actions child welfare practitioners can take include:
- Improve children’s chances of being placed with fictive kin by identifying and notifying fictive kin when children are removed from their homes.[45]
- Find all fictive kin who could potentially serve as placement resources by asking the child if there is a friend of the family with whom he or she would prefer to live.[46]
- Support fictive kin by informing potential fictive kin caregivers of their options to take custody or serve as placement resources and the supports available to them.[47]
Julia J. Eger, JD Candidate, Class of 2023, University of Virginia School of Law.
Endnotes
[1] U.S. Department of Health & Human Services, Administration for Children & Families. AFCARS Report #28, 2021.
[2] Id.
[3] American Legislative Exchange Council. The Kinship Care and Fictive Kin Reform Act, 2017.
[4] 42 USCA § 675(a)(3).
[5] Id.
[6] Katz, Sarah. "The Value of Permanency: State Implementation of Legal Guardianship Under the Adoption and Safe Families Act of 1997." Michigan State Law Review 2013, 1079, 1088-89.
[7] Ala. Code § 38-12-2 (2017).
[8] Md. Code Regs. § 07.02.29.02 (2019).
[9] Vesneski, William et al. "An Analysis of State Law and Policy Regarding Subsidized Guardianship for Children: Innovations in Permanency." 21 U.C. Davis Journal of Juvenile Law & Policy 21, Winter 2017, 27, 43.
[10] Id.
[11] See, e.g., Iowa Code Ann. § 232.84; Ill. Comp. Stat. tit. 20 § 505-7(b); Me. Rev. Stat. Ann. tit. 22 § 4036-B.
[12] Coupet, Sacha M. "Swimming Upstream Against the Great Adoption Tide: Making the Case for “Impermanence.” Capital University Law Review 34, 2005, 405, 415.
[13] Kessler, Laura T. "Community Parenting." Washington University Journal of Law & Policy 24, 2007, 47, 64.
[14] Id.
[15] Gupta-Kagan, Josh. "Children, Kin, and Court: Designing Third Party Custody Policy to Protect Children, Third Parties, and Parents." New York University Journal of Legislation & Public Policy 12, 2008, 43, 74.
[16] Kessler, 2007, 65.
[17] Generations United. Grandfamilies: Strengths and Challenges, May 2020.
[18] Gupta-Kagan, Josh. "America’s Hidden Foster Care System." Stanford Law Review 72, 2020, 841, 854.
[19] Dilworth-Anderson, Peggye et al. "The Importance of Values in the Study of Culturally Diverse Families." Family Relations 42, 1993, 238, 240.
[20] Kane, Connie M. "African American Family Dynamics as Perceived by Family Members." Journal of Black Studies 30, 2000, 691, 692-93.
[21] Mini, Michelle M. "Breaking Down the Barriers to Transracial Adoptions: Can the Multiethnic Placement Act Meet This Challenge?" Hofstra Law Review 22, 1994, 897, 904.
[22] Gutman, Herbert G. The Black Family in Slavery and Freedom, 1750-1925, 1976, 222.
[23] Holmes, Gilbert A. "The Extended Family System in the Black Community: A Child-Centered Model for Adoption Policy." Temple Law Review 68, 1995, 1649, 1664.
[24] Id.
[25] Kessler, Laura T. "The Politics of Care." Wisconsin Journal of Law, Gender and Society 23, 2008, 169, 174.
[26] Mabry. Cynthia R. "African Americans “Are Not Carbon Copies” of White Americans–The Role of African American Culture in Mediation of Family Disputes." Ohio State Journal on Dispute Resolution 13, 1998, 405, 439.
[27] Kessler, 2007, 174.
[28] Generations United. African American Grandfamilies: Helping Children Thrive Through Connections to Family and Culture, 2020.
[29] Laura A., Rosenbury. "Friends with Benefits?" Michigan Law Review 106, 2007, 189, 207.
[30] Kessler, 2007, 58.
[31] Id. at 58–59.
[32] Christensen, Craig W. "If Not Marriage? On Securing Gay and Lesbian Family Values by a 'Simulacrum of Marriage.'” Fordham Law Review 66, 1998, 1699, 1725 (citing Kathy Weston. Families We Choose: Lesbians, Gays, Kinship, 1991, 206, 209).
[33] Kavanagh, Matthew M. "Rewriting the Legal Family: Beyond Exclusivity to a Care-Based Standard." Yale Journal of Law & Feminism 16, 2004, 83, 97.
[34] Godsoe, Cynthia. "Permanency Puzzle." Michigan State Law Review, 2013, 1113, 1131.
[35] Casey Family Programs. Kinship Care, Nov. 18, 2019.
[36] Priest, Stacy & Jennifer MacBlane. Foster Home Recruitment and Retention: One Size Does Not Fit All. Boston: Public Consulting Group, undated.
[37] Perry, Richard A. "Relative Preference, Emotional Attachments, and the Best Interest of the Child in Need of Assistance." University of Baltimore Law Forum 50, 2020, 83, 85.
[38] Id.
[39] Id. at 101 (quoting letter from The Coalition to Protect Maryland’s Children, to the Senate Judicial Proceedings Committee, Jan. 22, 2019).
[40] Mini, 1994, 917.
[41] Id.
[42] Id. at 917–18.
[43] Id. at 918.
[44] Id. at 942.
[45] This action is required by Mass. Gen. Laws Ann. Ch. 119 § 23.
[46] See, e.g., Utah Code Ann. § 80-3-302
[47] These measures are required by Vt. Stat. Ann. tit. 33 § 5307.