Guardian Rights of Aunts and Uncles

Millions of children do not live with their parents.

There are a variety of reasons that children may not live with their parents. Some of the more common are deceased parents, or parental incarceration or substance use disorders (GAO 2020). When children cannot safely remain with their parents, placement with kin is preferred over foster care with a nonrelative (Children’s Bureau 2022). Kin includes relatives such as aunts, uncles, grandparents, siblings, or other family members. It can also include fictive kin, non-relatives with a close relationship with the child or the family (Children’s Bureau 2022).

Nationally, 2.4 million children in the US are being raised by kinship families (Anne, E Casey Foundation 2024). Grandparents are predominant in kinship care, with 62% of children in kinship care living with their grandparents. While 24.8% live with other relatives including aunts and uncles. (GAO 2020, Figure 1).  Most children living with kin are doing so outside the foster care system (GAO 2020).

Figure 1. Children living with kin. In 2018, an estimated 2.7 million children were living with kin, mostly with grandparents. Chart adapted from GAO 2020.

There are several types of kinship care (Children’s Bureau 2022):

• Informal kinship care: Arrangements made by family members without involvement of a court or child welfare agency. Legal custody remains with parents.
• Voluntary kinship care: Situations where the children live with kin, a child welfare agency or court is involved, but the state does not take legal custody.
• Formal kinship care: Children are in legal custody of the state and are placed by a child welfare agency with kin.

Guardians are appointed by a court to have care and custody of a minor or incapacitated person.

Parents are considered the natural guardians of their children (RSMo 475.025). Aunts and uncles do not automatically have custody or parental rights for their nieces and nephews. They may acquire these through a legal mechanism such as becoming the legal guardian.

Guardians are appointed by a court to have care and custody of a minor or incapacitated person and are required to act in that person’s best interest (RSMo 475.010(8), RSMo 475.120(2)). If the parents of a minor are deceased, have had their parental rights terminated, or are unwilling, unable, or unfit to be a guardian, a guardian may be appointed (RSMo 475.030). Guardians are appointed by a Probate Court (Parentlink Kinship Navigator Program n. d.).

A court can appoint a guardian whose appointment serves the best interest of the child.

Any person may petition for their own or for some other qualified person’s appointment as a guardian of a minor (RSMo 475.060). Following the petition, notice of the application must be sent to the minor (if they are 14 or older), the minor’s parents, the minor’s spouse, and any other persons directed by the court (Missouri Bar Association 2024).

If the minor is over 14 years old and has no living parent, the minor may appoint someone to be their guardian. If both parents are deceased a guardian may be appointed by the will of the last surviving parent. If neither of these apply the court shall appoint someone willing and whose appointment serves the best interests of the child (RSMo 475.045).  While this person could be an aunt or an uncle, it could also be another family member or a nonfamily member, who is willing, eligible, and whose appointment serves the best interest of the child.

References

Anne E. Casey Foundation (2024) Children in kinship care in United States. https://datacenter.aecf.org/data/tables/10455-children-in-kinship-care

Children’s Bureau (2022) Kinship care and the child welfare system. U.S. Department of Health and Human Services. https://www.childwelfare.gov/resources/kinship-care-and-child-welfare-system/

Missouri Bar Association (2024) Probate law resource guide. https://missourilawyershelp.org/wp-content/uploads/2024/03/Probate-Guide-Updated-2024.pdf

ParentLink Kinship Navigator Program (n.d.) Kinship caregiver fact sheet: legal issues for kinship caregivers. https://mailmissouri.sharepoint.com/:w:/s/MUCEDUCStrategicCommunications-Ogrp/EcN5mFU1_ohLo1UxrBFCVrcB5sri94wpiYf2Rb5vZbIVAw?e=PSJzNW&wdLOR=c9337EBA6-5439-404C-B48B-454B1C74A31F

RSMo § 475.010. (2018) Definitions. https://revisor.mo.gov/main/OneSection.aspx?section=475.010

RSMo § 475.025. (1983) Rights of parents as natural guardians of minors. https://revisor.mo.gov/main/OneSection.aspx?section=475.025

RSMo § 475.030 (1983) Letters of guardianship and conservatorship issued, when. https://revisor.mo.gov/main/OneSection.aspx?section=475.030

RSMo § 475.045 (2009) Who may be appointed guardian of minor. https://revisor.mo.gov/main/OneSection.aspx?section=475.045

RSMo § 475.060 (2018) Application for guardianship — petition for guardianship requirements — incapacitated persons, petition requirements. https://revisor.mo.gov/main/OneSection.aspx?section=475.060

RSMo § 475.120 (2021) General powers and duties of guardian of the person — social service agency acting on behalf of ward, requirements — preneed funeral contract permitted, when. https://revisor.mo.gov/main/OneSection.aspx?section=475.120

United States Government Accountability Office (GAO) (2020) Child welfare and aging programs HHS Could Enhance support for grandparents and other relative caregivers. https://www.gao.gov/assets/gao-20-434.pdf