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Relatives' rights to care for children: if parents can no longer care for their child and a relative wants to step in, should he or she become a foster parent or seek legal custody? The relative must consider each option carefully and understand that neither goal is easy to achieve.

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When a child is removed from his or her home because of abuse or neglect, relatives may opt to take care of the child. But what is the best way to do that? For example, if a grandmother comes to you when child welfare authorities take her grandson away from her daughter and son-in-law, and she wants to take care of him, what should you tell her? Should she try to become the child's foster mother, or should she seek legal custody? She must weigh her options carefully--and you must advise her of the advantages and disadvantages of both choices.

All states must have procedures to protect children from parents who abuse or neglect them. (1) One way of protecting children is to remove them from the parents who abuse them and place them in a safer environment. When state officials remove a child from a home, the child may be placed in foster care, in which case the state retains legal custody, or the state may relinquish custody of the child to another person, usually a relative of the child. (2) When a state takes custody, the parent loses custodial rights but retains the legal guardianship of the child. (3)

Because parents have due process rights, a state that removes a child from his or her parents must provide the parents with either a predeprivation hearing or a prompt postdeprivation heating before a neutral magistrate. (4) However, if both the state and the parents agree that the child should reside with a relative, due process is satisfied by the parents' waiver of their right to a hearing, and the government will not be further involved with the child.

Our country has a long tradition of extended families raising children, and this tradition is expanding. From 1990 to 2000, the number of American families headed by grandparents increased 30 percent; by 2003, 6 million children lived in households headed by grandparents or other relatives. (5)

In the United States, the family is not only a revered entity but also a constitutionally protected one. The Supreme Court has repeatedly ruled that one aspect of the right to liberty, guaranteed by the Fifth and Fourteenth amendments, is the right to raise one's children, and to be raised by one's parents, without government interference, as long as the parents are fit to care for the children, and that the government cannot deprive people of those rights without due process of law. (6)

All families consisting of blood relatives are entitled to claim those substantive and procedural fights, not only families consisting of parents who raise their own minor children. As the U.S. Supreme Court declared almost 30 years ago in Moore v. City of East Cleveland, "Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition." (7) Thus, the government will not interfere with informal living arrangements unless the relative caretaker is unfit.

The situation changes when the relationship between relative and child becomes formalized by a court order or a voluntary placement in foster care. (8) Government regulation goes hand in hand with government recognition.

The most extensive form of government involvement with families is through the foster care system. Children in foster care have placed in government custody by court order in some sort of judicial proceeding. Those proceedings, and the foster care system, are highly regulated by both federal and state law.

Historically, foster children were placed in government custody far away from their families. The philosophy behind this approach was that the children, having been removed from families in which they had been neglected or abused, should have a completely fresh start--away from their abusive parents and away from the allegedly suboptimal neighborhoods that they came from.

That approach actively discouraged relatives from stepping forward to care for foster children. Indeed, many states refused to provide relative, or "kinship," foster parents the monthly foster care stipend that unrelated foster parents received. In 1979, the Supreme Court ruled that this practice was unconstitutional and required states to provide stipends to all foster parents, regardless of their relationship to the children in their care. (9) That decision rectified the long-standing imbalance between kinship and stranger caregivers and permitted relatives to care for their grandchildren, nieces, nephews, and younger siblings where they otherwise might have been unable to do so for financial reasons--and paved the way for relatives to serve as foster parents for children.

As time passed, the states and even the federal government revised their thinking. Now the federal government and most states explicitly give relatives a preference as potential foster parents for children in government custody. (10) As...

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