Legal Guardianship of Minors

Parents are usually their child's default legal guardians. This means they are their child's primary physical and legal custodian, responsible for their child's well-being. Legal guardians care for a child's well-being when their parent(s) cannot. 

Sometimes, a child's parents cannot make decisions in their child's best interests. If that happens, a child may need a different adult to make decisions for their well-being. One option is a guardian of a minor, one type of guardianship. 

Legal guardianship is a legal relationship established by court order.

A guardian is someone authorized to make critical decisions for an incapacitated person. An incapacitated person cannot make decisions for themselves, usually due to illness or injury.

In the case of a minor, their age is an incapacity. A child cannot enroll in school or get medical treatment on their own. A guardian may be necessary if a child's parent or parents cannot care for them.

This article explains the guardian selection process, the guardian's responsibilities, and the guardianship's termination.

The Difference Between Legal Guardianship and Custody

It is easy to confuse the terms "legal guardianship" and "custody." Both terms relate to children but differ based on the person involved in either relationship.

Custody usually involves a child's parent and is often used in the context of a divorce. When parents divorce, they can split their child's physical custody and legal custody or make other custody arrangements.

In legal guardianship, a different adult (not the minor child's parent) has the legal authority to make decisions for the child.

When Is a Guardian Necessary for a Minor?

A parent may be unable to care for their child's needs for many reasons, such as:

• Incarceration
• Medical illness
• Child abuse or neglect
• Mental health issues

In the case of child abuse, social services will remove the minor child from the care and supervision of their biological parent or parents, pending an investigation. Often, the child goes into the foster care system. The parent may lose physical and legal custody of their child. Despite these circumstances, a child still needs housing, education, and healthcare.

If a Minor Has a Child, Who is the Guardian?

When a minor has a child of their own, things become more complicated. Although the age of consent for sex is between 16 and 18 in most states, teen pregnancies remain common. The age for legal guardianship is at least 18 in most states, and family court judges may want guardians to be at least 21.

Regardless of their age, the child’s mother generally retains legal custody. In some cases, the child’s father may have parental rights as well. Custody and parental rights involve making decisions for the child’s care and upbringing.

Minors cannot legally provide food, clothing, or shelter for a child on their own. An adult must be part of the decision-making process for the infant until the minor parent is old enough to do so.

In general, there are three options for guardianship of a minor’s minor child:

• The minor’s parents (the infant’s grandparents) are responsible for the infant’s care until the minor reaches the age of majority.
• The minor can petition for emancipation. If they can show they can support themselves and their child, the judge may permit them to be the child’s guardian as well as the parent while they are a minor.
• The court will appoint a guardian. If the minor’s parents are unable or unwilling to support the minor and the child, an appointed guardian can oversee their welfare until the minor is able to support them both.

If both parents are minors, both sets of grandparents must contribute to the infant’s support. If the mother lives with her parents, and they are willing to support the baby, there is no need for a court hearing unless the parents want a formal acknowledgment of guardianship.

How Courts Choose a Minor's Guardian

Once a court determines the minor's parents are incapable of caring for their child, a guardianship case begins. The most critical consideration in selecting a guardian of a minor is the best interests of the child.

The court wants to reduce harm and trauma to a child removed from their parent's care. Courts prefer to choose a guardian with ties to the child, such as a family member. Selecting someone the child already knows may ease their anxiety and help them adjust to a new home.

• Interested parties can file guardianship petitions in either family court or probate court.
• Guardianship proceedings begin with filing a petition for letters of guardianship and paying a filing fee.
• If the filing fee is too expensive, the interested party may request a waiver.

The court will schedule at least one hearing and take evidence, including affidavits. The court will also consider the proposed guardian's character, history, and ability to care for the child. A court may enlist the help of a court investigator to check the proposed guardian's background.

The court examines the proposed guardian's history because this person makes essential decisions for the minor child. Guardians are court-appointed to decide on the minor's medical care and finances. They are also responsible for the child's welfare.

Types of Guardians

Once the court grants the petition for letters of guardianship, it will order an appointment of a guardian via court order. The court can choose between guardianship of the person and guardianship of the estate.

• A guardian of the person handles all decisions except decisions related to finances.
• A guardian of the estate manages the ward's finances and property.

The court can appoint one person to fulfill both roles, or it can establish co-guardians.

While parental rights do not terminate in the guardianship process, the legal guardian is the only person who can make decisions for the minor child. Depending on the circumstances, the parent(s) may visit and maintain a relationship with their child.

What Happens During a Guardianship Hearing?

A guardianship hearing, like any other court hearing, is a long process that involves many people and many questions. Any interested person can appear at these hearings, including those who might object to the guardianship.

Before the hearing, the court sends notices to all relevant parties, including the minor's parents, grandparents, and friends.

Court investigators talk to all parties related to the child. The court may appoint a guardian ad litem for the child. The guardian ad litem advocates for the child’s best interests if the child is too young to speak for themselves.

During the court proceeding, the judge reviews the case notes and reports from the investigators and the guardian ad litem. The judge may ask questions from:

• The child’s parents
• The proposed guardian
• Anyone with objections or concerns
• The child, if they are old enough

The judge may make an order for guardianship that day, or may set another hearing or request for trial. The judge can also make a temporary order and have the parties return in six months to see if a temporary guardianship should be converted to a permanent guardianship.

Roles and Responsibilities of a Child's Guardian

The guardianship of a minor is a serious role. A guardian is more than a caregiver—the child depends on the guardian. The guardian takes care of the child's financial, physical, and emotional well-being.

A guardian must:

• Provide a home for the minor child
• Provide financial support for the child
• Enroll their school-age ward in public or private school
• Apply for public benefits, including social security, for a minor if needed
• Get healthcare for the child
• Get legal advice for the child, if necessary
• Bring a lawsuit on behalf of the minor, if necessary
• Manage the minor's estate, if needed

The guardian also receives and manages any monies due to the minor for their care or support. The guardian must maintain, account for, and preserve any excess funds. The guardian must look after the minor's personal property. They must enroll the ward in school and ensure they receive a proper education.

The guardian authorizes any necessary medical care or other care for the well-being of the minor child. They can get mental health treatment if necessary. Generally, the guardian provides whatever care parents give to a child.

Termination of a Minor Guardianship

There are several ways a guardianship ends. Here are a few:

• If the child dies
• When the child reaches the age of majority (usually 18 years of age)
• In the case of a guardian of the estate, termination occurs when the minor child's assets are exhausted
• The guardian neglected their duty and responsibilities to the ward
• The court determines that legal guardianship is no longer beneficial for the child

In cases where the guardian neglects their duties and responsibilities to the minor child, the court will appoint a new guardian. The guardianship process will begin again with a guardianship petition.

Get Legal Help With Your Minor Guardianship

If you are considering filing a guardianship petition, seek legal advice. A qualified lawyer can help you navigate the complexities of the guardianship process. Contact a qualified, local family law attorney today to learn more.