FAQ: Guardianship of a Minor Child

 Below are some commonly asked questions about the guardianship of minor children.

Frequently Asked Questions About Guardianship

• Who or what is a guardian?
• How do guardianships differ from adoptions?
• How does a guardianship of minors end?
• What does the term "guardian ad litem" mean?
• If I am living with a child who is not my own, should I become a guardian?
• Does a child have to live with their legal guardian?
• Are there reasons I should not become a guardian?
• If I am already a parent, would I ever need to become my child's guardian?
• Make sure your guardianship process goes smoothly: Hire an attorney

Who or What Is a Guardian?

Sometimes, parents are unable to take care of their children. In such circumstances, a family court or probate court may appoint a third party as a guardian. A guardian is a person, often a family member, who will care for a child's needs. These needs may include medical and financial decision-making authority and ensuring the child's mental health and well-being.

How Do Guardianships Differ From Adoptions?

Adoptions and guardianships share many characteristics. For example, adoptive parents and guardians must ensure a child has the basic necessities. This includes health care, education, and stability. Both roles must be approved via a court order. One difference is the permanency of each role.

Through adoption:

• The adoptive parents replace the child's parents, and the parent's legal rights to the child are terminated. 
• The child's name will change, they can inherit from the adoptive parents, and adoptive parents have legal custody. 
• The child cannot automatically inherit from their biological parents. 
• The adoptive parents are responsible for every aspect of a child's life. 
• The biological parents no longer have any legal right or responsibility to the child. 

Guardianship of a minor is not as permanent and ends when the child turns 18. Guardianships can also end at any time before then through legal proceedings. Guardianships do not terminate the parental rights of the child's biological parents. In many states, guardianship is established after filing a guardianship petition and court hearing if it is in the child's best interests.

How Does a Guardianship of Minors End?

Several events typically trigger the end of a guardianship:

• The death of the child
• The child reaches the legal age of majority, typically 18 in most states
• A judge determines that guardianship is no longer necessary or beneficial for the child's welfare
• The sole purpose of the guardianship was to manage the child's finances, and the child's financial assets are exhausted
• The guardian and the child's parents agree that it is in the child's best interest to end the guardianship.

Guardians may also ask a court to relieve them of their guardianship, and the court will appoint a new guardian once accepted.

What Does the Term "Guardian Ad Litem" Mean?

Guardians ad litem are court-appointed representatives to investigate the minor's (or incapacitated adult's) welfare. Guardians ad litem stand in the shoes of the minor (or incapacitated adult) during court proceedings involving welfare matters.

This includes divorces, disputes about estates, or any other situation where the court determines that the minor (or incapacitated adult) cannot represent themselves. Courts may appoint a neutral attorney (guardian ad litem) or social worker to advocate for the child's best interests.

If I Am Living With a Child Who Is Not My Own, Should I Become a Guardian?

If you plan to take care of the child long-term, you should consider becoming a guardian. Without guardianship, you will have difficulty getting medical care for the child and enrolling them in school. Also, because guardianship of a minor child creates a legal right, you will have some say in the child's future as a guardian. Caregivers do not have these rights.

Does a Child Have To Live With Their Legal Guardian?

A child typically lives with their legal guardian. But, there can be exceptions depending on circumstances. For example, a court might order a different living arrangement if it is deemed in the best interest of the child. Or, there may be temporary situations where the child lives with another family member or in a different setting due to specific needs.

A court-appointed guardian of a minor is responsible for making decisions regarding the child’s welfare—including where they live. Ultimately, the guardian must make decisions about living arrangements with the child's best interests in mind. This often requires court oversight or agreement among the parties involved.

It may also depend on the type of guardianship. If someone is granted conservatorship only, which is limited to managing a child's financial affairs, the child would likely live elsewhere.

Are There Reasons I Should Not Become a Guardian?

There are many reasons why someone would not want to become a guardian. You might not have the resources to care for a child. Filing a guardianship petition could upset the child's parents. This may cause problems for the child. The parents could object, complicating the guardianship process.

But, raising a child without a legal relationship could cause significant issues. Hospitals, routine healthcare, schools, and mental healthcare require parental authorization.

Each state has different rules with different responsibilities, authority, and obligations of the guardian. A local family law attorney can provide legal advice and help you understand the guardianship laws in your state. 

If I Am Already a Parent, Would I Ever Need To Become My Child's Guardian?

Yes, if the child inherits property or money, receives a settlement, or is owed money or property, you may need to become the child's guardian of property (conservator). Courts are reluctant to hand over financial assets intended for a child to the child's parents. Parents may misuse a gift that was intended for the child. With an appointment of a guardian of property (conservator), a legal relationship is in place to make the parent legally liable for those assets and their management.

Ensure Your Guardianship Case Goes Smoothly: Get Help From an Attorney

State laws regulate legal guardianship of minor children. Each state has its own requirements and obligations to become the guardian of a minor child. It is crucial to understand your legal responsibilities and rights as a guardian to ensure you are fully prepared for this process.

Consider meeting with an experienced family law attorney licensed in your state to ensure a successful legal process. An attorney can help you navigate your state’s court forms, documentation, and procedures required for guardianship.