Safeguarding America's "Unnatural" Guardians: How Georgia's Legal Guardianship Statute Excludes "Atypical," Matriarchal Familial Structures Rooted in Black Culture
Destiny B. Barnett
Safeguarding America's "Unnatural" Guardians: How Georgia's Legal Guardianship Statute Excludes "Atypical," Matriarchal Familial Structures Rooted in Black Culture
Cover Page Footnote
J.D. Candidate, 2023, University of Georgia School of Law; B.A., 2020, Agnes Scott College. This Note is dedicated to Betty Wilker Barnett and Louise Wilker Neal, legal guardians and grandfamily of Destiny Briana Barnett.
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SAFEGUARDING AMERICA'S "UNNATURAL" GUARDIANS: HOW GEORGIA'S LEGAL GUARDIANSHIP STATUTE EXCLUDES "ATYPICAL," MATRIARCHAL FAMILIAL STRUCTURES ROOTED IN BLACK CULTURE
Destiny B. Barnett*
The stereotypical American family is often seen as one man, one woman, and their child. However, this notion of the traditional family is changing. For centuries, familial matriarchs have assumed roles typically reserved for a child's biological parents. Specifically, African American grandmothers, aunts, and other female figures have served as kinship caregivers for countless generations of children dating back to before the period of American slavery. These forgotten matriarchs, who often serve as the foundation of African American family units, have been historically abandoned by our universalist legal system that idolizes the nuclear concept of family and favors the retention of biological parents' rights. Although legal avenues exist for these kinship caregivers to achieve rights comparable to that of a biological parent—for example, temporary or permanent guardianship—the procedural ambiguity and inaccessibility of these options make them unfeasible for many kinship family units.
This Note will explore Georgia's current guardianship laws and how they restrict kinship caregivers' access to financial and social resources due to their capricious adjudication and parental consent requirements. The Note suggests adopting a statute akin to New Jersey's Kinship Guardianship Notification Act and reintroducing de facto parenthood (previously introduced in the Georgia Legislature as Georgia House Bill 321). The former focuses on informing kinship caregivers of how they may obtain social services from the State to support the child they are caring for, while the latter
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eliminates extensive petitioning and judicial loopholes for potential de facto custodians. In addition to these suggestions, this Note advocates for the fusion of Black feminist theory and legal theory by reframing the narrative of family from one rooted in the theoretical Anglo-American nuclear ideal to one that acknowledges the innate nuance of what constitutes family across all ethnicities and social groups.
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I. INTRODUCTION...................................................................474
II. BACKGROUND...................................................................476
A. MATRIARCHS, MAMMIES, AND OTHER MEANS OF MOTHERHOOD: THE EVOLUTION OF NON-PARENTAL, BLACK WOMEN CARETAKERS...................................................476
B. GEORGIA'S LEGAL GUARDIANSHIP STATUTE AND WHO IT LEAVES OUT.................................................................479
C. OVERCOMING BIOLOGICAL FAVORITISM IN THE REALM OF KINSHIP LAW..........................................................480
III. ANALYSIS........................................................................482
A. LEGAL ACKNOWLEDGEMENT AND COMPENSATION METHODS....................................................................482
1. New Jersey's Kinship Guardianship Notification Act .................................................................. 482B. WHERE LAW AND BLACK FEMINIST THEORY INTERTWINE: THE COMPLEXITIES AND SOCIAL REALITIES OF BLACK "MOTHERHOOD"...........................................485
2. Reintroducing De Facto Custodial Parenthood ......................................................................... 483
IV. CONCLUSION...................................................................487
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Kinship caregivers—a group disproportionately comprised of grandmothers, aunts, and other matriarchal figures of color—have historically assumed parental roles traditionally1 held by a child's biological mother or father.2 Prior studies have documented the reasons why Black matriarchal figures specifically "serve as kinship care providers and the consequences, sacrifices, and rewards of their decisions."3 These studies demonstrate that "the reasons that Black grandmothers agree to serve as kinship care providers for grandchildren include feeling [an] obligation, acting as a mechanism for family survival, and providing a safe haven for children who have been abused or neglected by their parents."4
This kinship caregiving role presents unique challenges.5 For example, many kinship caregivers and the children they nurture "live at or below the poverty line, in overcrowded households," with these caretakers often being individuals who are "elderly, single, or poorly educated."6 Additionally, many Black kinship caregivers
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experience increased time demands, financial burdens, and family-related stress.7 Although government resources may be available to ease a few of these hardships—for example, "respite care for relative caregivers, free legal services, and welfare payments"8 —many of these caregivers do not know how to access these resources or lack the legal authority to do so.9 Moreover, even when informed, caregivers are often not entitled to the same financial assistance that biological, adoptive, and foster parents are entitled to.10 Many states have taken steps to alleviate the plight of these largely unrecognized caretakers, but this issue has gone unaddressed at the federal level.11 This note will examine how the Georgia legislature can give Georgia's largely undercompensated and underacknowledged Black woman caregivers recognition that is long overdue.
Part II of this note details how Black matriarchal figures have been entrenched in caregiving roles for centuries, beginning as early as the late 1860s during the post-emancipation era. This historical reflection culminates by analyzing Georgia's current legal guardianship statute and its subtle but formidable barriers to accessibility for many nontraditional kinship caregivers.
Part III assesses two avenues the Georgia legislature can pursue to alleviate the plight of these Black caregivers and argues that the Georgia legislature should adopt a statute similar to New Jersey's Kinship Guardianship Notification Act or reintroduces de facto
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custodianship (also referred to as de facto parenthood). Part III also introduces a new legislative approach to creating and implementing kinship laws in the future that focuses on how narratives of Black women and other historically marginalized communities do not fit the traditional mold of what qualifies as a family unit. Part III concludes by highlighting the need for Georgia's legislature to acknowledge that this familial deviation is not a defect, but rather is an additional consideration worthy of statutory revision and accommodation. To that end, Part III introduces a new legislative approach that combines traditional principles of kinship law with emic theories of Black feminism to broaden the availability of legal avenues for Black kinship caregivers to be legally recognized and compensated.
A. MATRIARCHS, MAMMIES, AND OTHER MEANS OF MOTHERHOOD: THE EVOLUTION OF NON-PARENTAL, BLACK WOMEN CARETAKERS
"The role of the extended family in providing care and support for members within African American families is well documented."12 "In 2001, approximately 2,400,000 grandparents were raising grandchildren in the United States."13 Although this statistic includes all classes and ethnicities, "it is particularly prevalent among African Americans."14 Nine percent of African American children under the age of eighteen were living in grandparent-headed households compared with six percent of
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Hispanic children and four percent of non-Hispanic White children.15 These grandparents are also disproportionately female.16
When examining the history of informal kinship among African American families, these statistics are not surprising. Kinship care is a centuries-old protective tradition in African American families that was especially beneficial during the period of American slavery and the years that immediately followed emancipation.17 In fact, "African American grandparents have had a historical caregiving role from slavery to the current day" and they "consistently provide[] the emotional and financial support needed to ensure the well-being of their grandchildren when parents are working or absent."18 These kinship units "continue[] to exist within the Black community, and before the 1980[]s many Black children were cared for by kin outside of the child welfare system."19 Author and memoirist Nefertiti Austin recounts:
In the 20th century, Black families were shaped by post-slavery systems of peonage, like sharecropping. Itinerant farmers owned no land and had minimal, if any, political protections. Black laborers worked under constant threat of incarceration and physical abuse by white landowners. This was no way to raise a family, and many Black men and women ran north, east or west in search of work in factories and fair payment, leaving children and spouses behind. Relatives and neighbors stepped in to help raise those children. They provided
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community and became kin. The village, with or without blood ties, became family.20
Tradition is not the only rationale for Black women assuming these kinship caregiving roles. In a 2008 study of African American caregiving grandmothers,21 one participant claimed that her choice to undertake this duty was "framed by a sense of ancestral...
