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Kinship Caregivers - Legal Custody General Information

If I have been caring for my grandchild in my home for several years with their parents' permission, do I have legal custody of the child?

No, you do not have legal custody. Even though the parent has agreed for the child to live with you, you do not have legal custody. You will need legal documents in order to have legal custody and make legal decisions for the child such as enrollment in school, medical decisions and financial decisions. However, if you are caring for a child, you have a legal responsibility to keep the child safe and provide for basic needs.

Who naturally has legal custody?

Mothers and fathers, (if they were married to the mother at the time of the birth or have acknowledged the child) are the natural custodians of the child. Parents have constitutional rights to the care, custody and control of their children. Unless a court says otherwise, parents have rights and responsibilities that others cannot deny to them.

What are the different types of legal custody?

There are several different types of legal custody in Louisiana. They are provisional transfer of custody by mandate, voluntary transfer of custody by court order, tutorship, court ordered when the child is in state custody and court ordered when the child is in the parent's custody. The sheets that follow this will give you more detail on the types of legal custody.

How do I decide on the type of legal custody?There are several ways to get legal rights regarding the child in your care. Which you choose depends on what authority you are seeking, whether or not the parent(s) consent, and what level of documentation is required by others.

For example, consider what types of authority you want and who will have to accept your documentation:

Caring for the child in home:
Check with home owners insurance; check with housing manager
Enrolling the child in daycare/school:
Check with the particular daycare program or school
Taking the child to the doctor/dentist:
Check with doctor's office and health insurance carrier
Receiving support for the child from parents:
Check with support enforcement
Getting government benefits for the child:
Contact the government program office

If I get legal custody from a court, do the parents still have any rights regarding the child?

Unless you have legally adopted the child, parents still have certain rights. Those rights include the right to visitation, the right to consent to adoption, the right to determine religious affiliation, responsibility of support and the right to inherit from the child. These rights can be limited but only if a court order specifically limits them.

What papers should I have for the child?

You should always have a copy of the child's birth certificate together with the documents that authorize you to have custody of the child . Keep the originals of the birth certificate and other documents in a safe place. Make a copy of all the documents so that you can carry them with you and show them to whoever asks for proof that the child is in your custody. Never give up your original.

What happens if child protection becomes involved with the child?

If the Department of Children and Family Service (DCFS) receives a report of child abuse or neglect, they are obligated to investigate. If DCFS finds that the report is valid and the child is not safe in the home, they will ask the court for an order to remove the child from the home and place the child in the custody of the state. This order will begin a court process called "Child in Need of Care" or CINC.

What is a Child in Need of Care (CINC) case?

A Child in Need of Care case comes before the court because there is a belief that a child has been harmed or is at risk of harm due to abuse, neglect or abandonment. These cases often begin when a child has been removed from their home by the police or a social worker. The court then must determine that the child cannot remain safely in the home and it is in the child's best interest to be placed elsewhere. This court process does not always result in the child being placed in DCFS custody but that is one of the options for the court. For more information on the options for the court see the Legal Fact Sheets on Foster Care, Kinship Custody, Guardianship and Adoption.

There will be multiple court hearings until the child is returned home or adopted.

For an outline of the entire court process see: Guide to the Court Process - Louisiana Public Defender Board

What is foster care?

When a child is removed from the home and placed in the custody of the state, no matter where they are living it is called foster care. Once a child is placed in the custody of the state, it is the responsibility of DCFS to select an appropriate care setting for the child. This could be a relative or someone close to the child that has been approved and supervised by DCFS or with a family that is certified by the state as a foster home but not known to the child.

How do I become involved if the child is removed from the home?

During the initial investigation and throughout a CINC case, DCFS is obligated to search for and determine if there are relatives that are willing and able to care for the child. This search should also include non-blood relatives that may be close to the child such as godparents, neighbors, family friends, etc. These people are called fictive kin. As soon as you know that the child is in DCFS custody, it is critical that you contact DCFS to let them know that you are interested in having the child live with you or that you are interested in maintaining some level of relationship and contact with the child. You may also have information about other relatives who could possibly care for the child rather than having the child placed with certified foster parents whom the child may not know.