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  • January 10, 2023

    Fictive Kin and Guardianship: Acknowledging Emotionally Significant Relationships with Children

    Many benefits exist to placing children with relatives both inside and outside of the formal foster care system. Sienna Borchardt discusses the concept of “fictive kin” and the advantages of expanding the definition of relative to include fictive kin.

    Sienna Borchardt

    Across the U.S., 2,529,000 children were raised in kinship care from 2020 through September 2022, according to the Annie E. Casey Foundation. In Wisconsin, there were approximately 32,000 children in kinship care during this time frame. This data includes in its definition of kinship care children who are cared for full time by blood relatives or other adults with whom they have a family-like relationship, such as godparents or close family friends.

    Most children are raised by kin outside of the formal foster care system. Generations United’s 2021 State of Grandfamilies report estimates that, for every one child in the formal foster care system, there are 18 being raised by relatives and close family friends outside of the formal foster care system.

    When a parent is unable to care for a child, children thrive in kinship arrangements, according to Genertions United. Kin placements provide children with stability, stronger well-being, and a higher likelihood of achieving permanency. Children placed with relatives report fewer school changes, have better behavioral and mental health outcomes, and report that they felt loved. It is also easier for them to maintain connections to their siblings, their families, their cultures, and their communities.

    What Is Fictive Kin?

    The Kinship Care and Fictive Kin Reform Act defines fictive kin as an individual who is not related by birth, adoption, or marriage to a child, but who has an emotionally significant relationship with the child. This could include a godparent, neighbor, or close family friend.

    Despite the number of children living with someone other than a parent, the law does not always recognize fictive kin. Neither the federal Adoption and Safe Families Act (AFSA) nor the Fostering Connections to Success and Increasing Adoption Act define relative, but give states discretion to determine the definition of a relative. As a result, the definition of “relative” varies widely among states.

    A 2017 study of all 50 states and Washington, D.C., found 10 states that did not allow fictive kin to become guardian but required a guardian to be related to the child by blood, marriage, or adoption. Similarly, a report by the Casey Family Programs found that, of the 44 states that offer guardianship assistance programs, nine states do not allow fictive kin to become guardians.

    Additionally, many states narrowly define relative to include only those related by blood or marriage for the purpose of placement and when notifying relatives when a child is placed in agency custody as required by the Fostering Connections Act. As a result, children are not often placed with fictive kin when they initially become involved in the formal child protective system.

    In her call to action for states to include fictive kin in their definition of relative, Julia J. Egar outlines notable benefits of expanding the definition, including increasing subsidized guardianship as a permanency option, expanding kinship care benefits, and strengthening placement options for Black, Native American, and LGBTQ+ children, since family is often defined more broadly in these communities and not limited to blood relatives.

    Sienna Borchardt headshot Sienna Borchardt, Marquette Class of 2024, is a law intern at Kids Matter, Inc., Milwaukee.

    Fictive Kin in Wisconsin

    Wisconsin allows fictive kin to become guardian as well as to receive subsidized guardianship assistance. Neither Wis. Stat. section 48.977 nor Wis. Stat. section 48.9795 limits the appointment of a guardian only to relatives.

    Additionally, Wis. Stat. section 48.623, allows a person who has a significant emotional relationship with the child or the child's family and who, prior to the child's placement in out-of-home care, had an existing relationship with the child or the child's family that is similar to a familial relationship, to qualify for subsidized guardianship. This allows them to receive monthly financial payments while the guardianship is in place.

    However, Wis. Stat. chapter 48 does not broadly include fictive kin in its overall definition of relative under Wis. Stat. section 48.02(15). Notably, the definition was expanded to include “extended family members” when the Wisconsin Indian Child Welfare Act (WICWA) applies. Under WICWA, “extended family member” includes a person who is defined as a member of an Indian child’s extended family by law or custom of the Indian child’s tribe.

    The definition of relative under section 48.02(15) also includes for the purpose of placement only a parent of a sibling of the child who has legal custody of that sibling. This allows for more siblings to be kept together. Outside of these two exceptions, “relative” is more narrowly defined. The definition is limited to those related by blood, marriage, or adoption, specifically:

    a parent, stepparent, brother, sister, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named in this subsection, even if the marriage is terminated by death or divorce.

    Furthermore, the kinship care payment, a financial payment that is available to relative caregivers both inside and outside of the formal foster care system when certain eligibility requirements are met, does not include fictive kin in its definition of relative under DCF chapter 58.02(22).

    As already noted, many children in kinship care arrangements are outside of the formal foster care system. These families would not be eligible for subsidized guardianship. Expanding the definition of kin for the purpose of the kinship care payment would allow more people to receive financial assistance to help them care for children they were not expecting to raise.

    Conclusion: Many Benefits

    There are many notable benefits to including fictive kin in the definition of relative.

    Wisconsin does allow fictive kin to be appointed as guardian for children both inside and outside of the child welfare system. It also allows fictive kin to qualify for subsidized guardianship payments when other eligibility requirements are met. Additionally, Wisconsin has expanded its definition of relative to include extended family when the Wisconsin Indian Child Welfare Act applies.

    Expanding the overall definition of relative to also include fictive kin under Wis. Stat. chapter 48 would increase placement options for children.

    Furthermore, expanding the definition under DCF chapter 58 would also allow more persons to qualify for financial assistance. This would especially benefit those caring for children outside of the formal foster care system, who already do not receive the supports of the formal system.

    This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.

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    Children & the Law Blog is published by the Children & the Law Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Christie Christie and review Author Submission Guidelines. Learn more about the Children & the Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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