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How to Establish Guardianship of a Child FAQs

How to Establish Guardianship

For anyone interested in learning how to establish guardianship of a child, there are so many concerns accompanying such an important process. First of all, you'll want to get an understanding of the legal process required to get started, not to mention the factors considered by the court.

Read on for answers to common questions about establishing guardianship of a child.

Frequently Asked Questions

What's the procedure for establishing guardianship of a child?

You can establish guardianship of a child by filing papers in court. Initially, file a petition stating your interest in obtaining guardianship along with a filing fee. You'll also want to file a letter of consent from the child's parents if that is possible.

Once you've filed your petition, the court may set up interviews with you and possibly the child, the child's parents (if they're available), and anyone else who may have an interest. In some cases, the court may order a home visit or inspection. Also, a criminal background check of the would-be guardian is usually conducted.

Once the judge has approved your guardianship petition, they'll give you an order to establish guardianship. Be sure to check your local government's website for instructions. Some of these sites may even have forms you can download, fill out, and file with the court.

Can I appoint a legal guardian for my own children?

Yes, and doing so is good planning. In case of the unfortunate event that you become unable to raise your children, you should establish guardianship for them. One way to handle designating someone as your child's guardian is to do so in your will.

Choose someone you trust and add a clause to your will that you want that person to raise your children if you ever become incapable of doing so. Reasons for the inability to raise your child could include death or incapacitation.

In your will, name one person as guardian and one person as an alternate. Indicating an alternate is important in case the first person you indicate can't fulfill the position for any reason. Do this for each of your children.

You can even indicate more than one guardian and more than one alternate for any one of your children. Keep in mind, however, that this has the potential to create problems should the co-guardians ever disagree. Appointing a married couple often works well. Be sure to name both members of the couple. Doing so ensures that they have legal custody to make decisions for your child.

But keep in mind the drawbacks unique to designating a guardian in a will. The designation of a guardian in your will may not be honored under some circumstances. For example, in some states, when one parent dies, the other parent automatically gets custody unless they're proven unfit. In such a case, a probate court may refer the case 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 guardian?

When choosing a legal guardian, keep in mind that by law, the designated person must be:

  • An adult
  • 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 own income or with assets you leave for your child's or children's care

Do I need to explain my choice of legal guardian?

It's always a good idea to leave a letter of explanation for any judge that may question the choice you make concerning the person you designate as your child's guardian. Judges use the "best interests of the child" standard, and a judge will likely want to know why you feel the designated person 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

What if the parents of the child don't consent? Can I still establish guardianship of the child?

Generally, guardianship is only granted 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

And in cases where the parents object, you may still be able to obtain guardianship. In most cases, this involves proving the parents are unfit.

Besides the parents, the child's other family members also have rights when it comes to how you obtain guardianship. The other family members must be notified, and they also have the option to object. Although you don't need consent from all the child's relatives, their objections could create issues in your application process and the process in general. If this happens, be sure to promptly consult an attorney. And even if you obtain guardianship despite their objections, you may find yourself in a tense relationship with the other family members.

How burdensome are the responsibilities of legal guardianship?

It's not an easy task to be a minor's legal guardian. There are many responsibilities, including financial obligations and time with the child. If the biological parents are still living and still have rights to the child, such as physical child custody or visitation, then they're financially responsible for the 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 responsibilities of legal guardianship?
  • Am I ready to accept full 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 own family, health, job, and life overall?

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, keep in mind 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 applying for guardianship? Are you feeling confused as you navigate how complicated the process can be? A great first step is contacting an experienced family law attorney who can help you map out your plans for establishing guardianship. Get started today by finding a family law attorney near you.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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