By Guest Writer: Tara Casey
This article was previously published by Tara on the Pundits’ Podium and is reprinted here with permission from the author.
In a General Assembly session more known for its discord rather than its accord, one bill seemed to bring all sides together. It overwhelmingly passed both chambers of the General Assembly, with Republicans and Democrats agreeing upon its value in helping children remain with their families during times of crisis. Its supporters represented a broad cross-section of organizations, including Voices for Virginia’s Children, FACES of Virginia Families (a foster, adoption, and kinship association), the Virginia Poverty Law Center, and the Virginia League of Social Service Executives.
Furthermore, and most importantly, this critical piece of legislation would help families who are trying to keep their relative’s children from entering foster care.
However, with a strong stroke of the pen but shaky legal reasoning, Governor McDonnell vetoed this legislation late Friday afternoon.
SB 217 sought to assist the extended family members who care for children separated from a parent for their own well-being and safety. Many experts in the foster care field agree that connecting these children with other family members provides comfort and continuity to an otherwise confusing and frightening situation. Indeed, localities likewise attempt to find relatives who will care for these children, often making those placements before they enter government custody.
Although the children’s personal needs may be met by their extended family, their educational needs must still be met by the Commonwealth. Currently, many localities require families to obtain a court order granting legal custody prior to allowing these children to register for school. Because these kinship care placements are often temporary, seeking a custody order wastes valuable time, delaying school enrollment while simultaneously exacerbating the stress placed upon a family in crisis.
Senator George Barker introduced SB 217 to require local school districts to allow those family members caring for a relative’s child on a full-time basis to enroll that child, with sworn affidavits from both the parent and the family member detailing the kinship care arrangement. This bill addressed concerns from all aspects of our community touched by its provisions:
- It would encourage family-based continuity of care by keeping these children out of the court and social services system;
- It would minimize the interruption in a child’s education that would otherwise be caused by the crisis and subsequent burden of seeking a court order for school enrollment;
- It would protect the school districts from attempts at “school shopping,” while also ensuring that the adult enrolling the child has the legal authority to make educational decisions for the child;
- It would decrease the demand on our courts by allowing families to handle personal matters without a court order;
- It would require no additional financial resources nor increased spending from the budget.
In his veto of this legislation, Governor McDonnell found these kinship care arrangements “legally questionable” and further claimed that school districts may become embroiled in custody disputes should this bill become law. However, the larger question is upon what ground the Governor bases these concerns, as he has not put forward any substantive reasoning for or critical analysis of his purported legal issue with the legislation. Instead, he has only offered anecdotal conjecture of the effects these agreements would have upon school systems.
This legislation was supported by a cavalcade of lawyers who practice in this specific area of law, none of whom found its provisions to be legally questionable. In fact, when the Governor sought to amend the legislation by inserting a requirement for kinship families to seek a court order, both the Virginia Bar Association and the Virginia Trial Lawyers Association strongly opposed this measure. Furthermore, according to the National Conference of State Legislatures, twenty-two states grant parents the ability to delegate to another person, through a Power of Attorney, powers regarding care or custody of a child, including school enrollment. When the legal experts agree to the soundness of the bill, and other states have enacted similar legislation without a parade of horribles resulting, the Governor’s veto reasoning itself is rendered legally questionable.
Good for children in crisis, no additional spending required, broad bi-partisan support. In any other year, this would have been a successful recipe for a bill to become a law. However, this year has already been one of Virginia’s most noteworthy in its legislative history. And, unfortunately, we are finding ourselves on the wrong side of history – again.
Tara is a Richmond lawyer who lives in Hanover County with her husband and two small children; prior to her current position at the University of Richmond School of Law, she served as an Assistant U.S. Attorney for the Eastern District of Virginia.
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