Your Legal Rights while in foster care

A GAL is an attorney, but with a special job: to decide what they think are your “best interests,” and tell the court.

Your GAL should meet with you face-to-face at least once before each court hearing. They should meet with you in a place where you can privately share your wishes and concerns about the place where you live, the people caring for you, your school, and any needs you may have.

▪  Your GAL must review all your records, and speak to all involved: your parents, your foster parents or other caregivers, caseworker, court-appointed special advocate (CASA), teachers and others–and YOU!!

▪  It is the GAL’s responsibility to protect your best interests. Your GAL is also responsible for giving the court all the facts about you, your placement, and your case.

▪  Your GAL should give you a copy of your foster care plan, if the court does not mail it to you. By law, this must be provided to you if you are 12 or older, but you can ask for it at any age.

▪  The GAL must provide you with their contact information if you have any questions or concerns. Ask for their cell!

Your GAL must inform the court of your wishes even if your wishes are different from that of your GAL. The GAL is responsible for telling the court what they think is in your best interest. This may be different from what you want. The judge will be the one who makes the final decision.

If your GAL does not do their duties (see “Standards to Govern the Performance of Guardians Ad Litem for Children”) you may complain to the judge, or to the Virginia State Bar, which oversees all attorneys. 

Tell your GAL or the judge. If they don’t meet with you, you can file a complaint with the Virginia Office of the Children’s Ombudsman (currently, such a report will not be confidential, as the investigator by law must get approval from the local department to speak with a child or youth in their custody): https://www.oco.virginia.gov.

Your GAL must make sure you understand all of the court hearings you are involved in, your rights, and any possible consequences and outcomes.

Your GAL will be at all hearings to tell the judge what they think is best for you–and what you want, if that is different.

▪  If you and your GAL disagree about what is best, the GAL must tell the court what you want, but also explain why they think what you want is not the best thing for you.

▪  Your GAL is also responsible for filing “motions” (paperwork asking the court to do something on your behalf) with the court.

▪  Your GAL should check in with you regularly to see how you are doing, and provide their contact information (ask for their cell!).

You are considered a “party” (person involved in a legal case), so you should be involved in all stages of your case, including court hearings, whenever possible. This will allow you to hear what happens and express your feelings and hopes about the outcomes.

▪  If you are 12 or older, you have the right to receive “notice” of all court hearings and proceedings. This means the court must notify you in writing of any court hearings about your case.  Sometimes your presence at court may not be possible. Your GAL should explain why.

• If you are age 12 or older, you also have a right to be included in planning for your future, and attend meetings where plans are made about your care. If you have not been included in such meetings, ask your caseworker and your GAL why, and ask them to include you in future planning meetings. You have the right to include up to two trusted adults with you to these meetings. If your GAL or caseworker say you cannot bring the people you want, ask them why. If they think a person you want to bring may not be in your best interests, you have the right to pick someone else.

» The judge must consult with you in person regarding any “permanency decision” (how you will live until you are 18 or 21) the judge decides for you. Permanency includes returning home to your parents, leaving foster care to live with a relative, being adopted, or remaining in foster care until you are an adult. The court may or may not follow your wishes, but you have the right to tell the court what your wishes are. This is true no matter what age you are. Talk to your caseworker and GAL and remind them to include you in any court hearings about your permanent placement

Ask your GAL about talking to the judge. You may be able to talk in the courtroom (called “testifying”) or you may talk with the judge in their office (called “chambers.”) Usually, your GAL will be with you when you meet with the judge. The judge will consider your age, your wishes, the purpose of the hearing, and the advice from the GAL, caseworkers, and therapists, to decide whether or not you should talk to the judge in chambers, or testify in court.

Sometimes a child or young person in foster care may be called as a witness in their case. If you don’t feel comfortable testifying, or your GAL feels it may be too stressful for you, they may seek an agreement so you won’t need to testify. Or, you may testify, but not be asked a lot of questions. If you do testify, your GAL should try to make the process as easy as possible for you.  Your GAL may be able to arrange for you to testify by remote video instead of in the courtroom.

If you feel your GAL is not doing a good job for you, you can tell the judge why you are unhappy.  The judge might replace your GAL if the judge agrees with you or thinks your GAL is not representing your best interests.  Tell your caseworker if you are unhappy with your GAL. You may also complain to the Virginia State Bar

NOTE:  your GAL does not have to tell the court every time you express dissatisfaction or unhappiness.

Starting at age 14, your social worker should help you create a Transitional Plan. Your plan should include things you would like to do as you transition to adulthood, as well as what services you need. Your needs and wants may change. Talk to your caseworker or Independent Living Coordinator to change your Transition Plan. https://www.dss.virginia.gov/family/fc/independent.cgi

Young adults in foster care have the right to remain in foster care until age 21 through the Fostering Futures program. Or, you can choose to transition to independence and receive services through the Independent Living Program until age 21. You must be in foster care at age 18 to remain in or return to foster care after age 18. If you left foster care before age 18, you cannot return to foster care after age 18.

Once you reach 18, if you wish to continue receiving foster care services until age 21, you will sign a Voluntary Continuing Services and Support Agreement (VCSSA), to outline the services you will get, and your responsibilities to continue receiving them.

To continue to receive foster care services, you may be required to complete your high school education or obtain your GED, attend vocational school or college, or be involved in job training, or employment, or medical or mental health treatment if needed.

In the Fostering Futures program, you may choose to live with your foster family, on your own, with a relative, or even your parents–even if their rights were terminated.

» If you leave foster care at age 18, but then realize you want to return, you may do so before you reach 21. If it has been more than six months since you left foster care, you may need to create a new VCSSA. Reach out to your caseworker or GAL. 

Youth released from the Department of Juvenile Justice (DJJ) between the ages of 18 and 21, who were in foster care in Virginia immediately prior to being committed to DJJ, also qualify for extended foster care upon release.

If you are age 14 or older, the judge must confer with you to learn whether this is what you want. Tell your GAL and your caseworker what your wishes are. If your parents’ rights are terminated and you are adopted, you have the right to ask for a “Post-Adoption Contact and Communication Agreement,” or PACCA, so you can stay in contact with parents, and brothers and sisters, after you are adopted.

However, your parents and your adoptive family do not have to agree to this, and the judge does not have to approve this agreement. Learn more: PACCA Factsheet

You have the right to ask the court to restore your parent’s rights if you are over 14 and you are not adopted. The court will ask your GAL and your caseworker to look into this. The court does not have to agree to do this.  Also, if you are 18 or older you may remain in foster care but live with your parent, even if their rights were terminated. If this is what you and they want, ask your caseworker or GAL.

You have the right to receive all your legal documents including a certified copy of your birth certificate, social security card, your health insurance card, driver’s license, and any other legal documents, as well as other information from your records, including photographs.