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In most states, child protection agencies induce parents to transfer physical custody of their children to kinship caregivers by threatening to place the children in foster care and bring them to family court. Both the frequency of these actions (this Article establishes that they occur tens or even hundreds of thousands of times annually) and their impact (they separate parents and children, sometimes permanently) resemble the formal foster care system. But they are hidden from courts, because agencies file no petition alleging abuse or neglect, and hidden from policymakers, because agencies do not generally report these cases.

While informal custody changes can sometimes serve children’s and families’ interests by preventing the need for state legal custody, this hidden foster care system raises multiple concerns, presciently raised in Supreme Court dicta in 1979 in Miller v. Youakim. State agencies infringe on parents’ and children’s fundamental right to family integrity with few meaningful due process checks. Agencies avoid legal requirements to make reasonable efforts to reunify parents and children, licensing requirements intended to ensure that kinship placements are safe, and requirements to provide foster care maintenance payments to kinship caregivers.

This Article explains how the present child protection funding system and recent federal financing reforms further incentivize hidden foster care without regulating it. Moreover, relatively recent state statutes and policies codify the practice without providing much regulation. In contrast to this trend, this Article argues for regulation: the opportunity for a parent to challenge the need for the custody change in court, limits on the length of time such custody changes can remain in effect without more formal action, the provision of counsel to parents (using money made available by a separate recent change in federal child protection funding), and requirements for states to report cases in which their actions lead to parent-child separations.


Constitutional Law | Family Law | Juvenile Law | Law