There are many reasons to establish guardianship of a child. A child's parents can name a guardian in a will to ensure their minor child has a guardian if they die prematurely. A court may appoint a guardian for a child removed from their home for abuse and neglect. Guardianship is necessary in these circumstances because a child cannot make their own legally binding decisions. A child has no legal right to obtain healthcare, make medical decisions, or open bank accounts alone.
Establishing guardianship of a child is a complex legal process. This article explores a few frequently asked questions (FAQs) to help you better understand the process of establishing guardianship of a child.
In this article, we will answer the following frequently asked questions:
What Does a Guardian Do?
A guardian is more than a caregiver. A court-appointed guardian has the legal authority to decide for the child if their parents cannot care for them by granting the guardian legal custody. A guardian may or may not have physical custody of the minor child.
The guardian makes decisions for the child according to a court order. They consent to medical treatment and mental health care. They also make financial decisions (conservator) for the child ("ward"), such as applying for social security or other government benefits. Parental rights are not terminated in legal guardianship, even if the guardian has physical custody of the child.
What Is the Procedure for Establishing Guardianship of a Child?
According to state law, in most states, an interested party can establish guardianship of a child by filing a petition for guardianship. An interested person includes a family member, a social worker, a government agency, or a member of the ward's community. A filing fee should accompany the petition. The petition should explain why guardianship is necessary.
Once the case is open, the court may appoint a guardian ad litem to represent the best interests of the child. They do not represent the child. A guardian ad litem independently investigates the facts of the guardianship case and provides the court with an opinion. They will interview the minor child, their parents, the proposed guardian, and anyone else who can provide information.
Once the investigation is complete, the guardian ad litem prepares a report. The report includes recommendations for the type of guardianship, whether one is necessary, and who is the best person to serve as a guardian for the minor child. These recommendations are one factor the court uses to reach a decision. The court also looks at the background of the proposed guardian, including a criminal background check.
After approval of the guardianship petition, the court will issue an order establishing the guardianship of a minor.
Can I Appoint a Legal Guardian for My Children?
As part of their estate planning process, parents can name guardians for their children in their wills. If they cannot care for their children, their choice of guardian will be clear. Parents can appoint a guardian for their minor child or establish a guardian of the estate for their child.
A guardian of the estate is only responsible for the minor child's assets, such as an inheritance or real property. A guardian of the person (for a minor child) has decision-making powers over the child's finances and general well-being. The guardian of the minor child makes decisions for the child's welfare, including medical care, education, housing, and finances.
Naming a guardian in a will gives parents control over who will raise their child. They can pick a loved one or someone they trust, who shares their values, and who can maintain custody of the child.
Parents should name a second guardian in their wills. This person can fulfill the role of guardian if the designated guardian cannot. A few reasons for the inability to raise the child could include death or incapacitation.
But remember the drawbacks unique to designating a guardian in a will. The parent's choice may not be honored under some circumstances. For example, in some states, when one parent dies, the other parent automatically gets custody unless proven unfit. In such a case, a probate court may refer the matter to a family court with jurisdiction to determine custody issues. This might happen if your co-parent were to contest the guardianship designation in your will.
Who Can Be a Legal Guardian?
When choosing a legal guardian, keep in mind that by law, the designated person must:
- Be an adult
- Be physically able to fulfill the responsibilities of a guardianship
- Have ample time to care for your child or children
- Able to afford to raise your children, using their income or with assets you leave for your child's or children's care
Do I Need To Explain My Choice of Legal Guardian?
Including a letter of explanation for the judge is a good idea. Judges use the "best interests of the child" standard, and a judge may want to know how the proposed guardian serves those interests. Judges consider the following:
- The child's preference
- Who can best fulfill the child's needs, stability, and continuous care
- The relationship between the child and the potential legal guardian
- The moral character, fitness, and conduct of the potential guardian
Can I Establish Guardianship of the Child Without Their Parent's Consent?
Generally, the court may approve guardianship of a minor child if:
- Both parents consent to the guardianship unless only one is available to do so
- The parents have abandoned the child
- A judge finds it would be in the child's best interests to remove the child from the parent's custody
In cases where the parents are unfit, the judge will appoint a guardian. An interested party may not be the court's first choice of guardian. Courts want to keep families together, and a family member is often the first choice of guardian.
What Are the Responsibilities of Legal Guardianship?
It's challenging to be a minor's legal guardian. Guardians have many responsibilities. Like biological parents, they have to care for the child and make legally binding decisions for the minor child.
In most cases, you're taking on all the responsibilities of a parent when you become a guardian. Before taking on this role, consider the following questions:
- Do I want the continuous duties of legal guardianship?
- Am I ready to accept total liability for the child's actions?
- Do I want to act as the legal parent of this child for the entirety of the guardianship?
- Will the parents support my guardianship, or will they be hostile?
- How will guardianship affect my family, health, job, and life?
Becoming the legal guardian of a child is a huge responsibility with a lot to consider. Think carefully about the questions above and plan accordingly. Also, remember that, generally speaking, the parent(s) may revoke the guardianship at any time.
Discuss Your Concerns About Guardianship of a Child With an Attorney
Are you considering guardianship for your child? Contact an experienced local family law attorney who can provide legal advice and help you map out your plans for establishing guardianship. Get started today by finding a family law attorney near you.