Basics of Getting Your Child Back After a Voluntary or Involuntary Guardianship

Guardianship of a minor child may be voluntary or involuntary. Your state law will clarify the procedure you need to follow. 

Guardianship is a legal arrangement where the court or a parent gives someone else the right to make decisions for a minor child. Parents can get their guardianship rights back by taking one of the following actions:

  • Revoking the original guardianship
  • Requesting a court order to revoke the guardianship

The method you need to use always depends on the circumstances.

Basics of Legal Guardianship

If you have legal custody of your child and enter into a voluntary arrangement for guardianship with a competent adult, you will want to put such an agreement in writing. The law may require you to file a request in probate court seeking approval of your agreement. If you are a non-parent and seek to take guardianship from a child's legal parent, then you will definitely need to file a court action.

The probate court process for the appointment of a guardian will require a background check. A social worker may conduct an investigation to verify that a proposed guardian is suitable. Even when all parties agree, there may be filing fees and a court hearing.

The guardian has legal custody of the child (referred to as the ward). The guardian provides care to address the child's day-to-day needs, medical care, and well-being. Guardians can generally make important decisions for their ward, including health care decisions and school-related decisions. After the appointment of a guardian, the child's parents may need to pay child support that will help the guardian care for the child.

States have different rules and a variety of laws on the specific powers and duties of a guardian. You should check your state's laws to determine how a guardianship is set up and how it is terminated.

Reasons for a Guardianship

Parents can give guardianship of the child to another person for several reasons. These may include a temporary incapacity such as a medical condition or emergency. It may also include a parent's inability to care for their child. For example, the parent may be battling a substance abuse addiction or a mental health concern and decide that they cannot handle custody of the child. A court may also assign guardianship rights to another person, such as a family member, if it determines this would be in the child's best interests.

Unlike adoption, biological parents can keep a legal relationship and (potentially have visitation rights) with the child even though the guardian has physical custody of their child. It will depend on the circumstances of the case and the court's view of the child's well-being and safety.

Both adoptive and biological parents can willingly or unwillingly lose custody of their children. If a parent's abuse or neglect prompted the involvement of child welfare officials, a court may place the child in foster care prior to the appointment of a guardian.

Terminating Guardianship: Basics and Process

Typically, a guardianship is terminated when one of the following occurs:

  • The child becomes 18 years old or reaches the majority age in the state
  • The child dies
  • The current guardian willingly renounces guardianship or becomes unable to serve (In such cases, the court will appoint a new guardian if it deems one necessary)
  • A natural parent files a request and the judge terminates the guardianship after determining it is no longer beneficial to the child's welfare

Voluntary Temporary Guardianship

If you voluntarily put a short-term guardianship in place, it is terminated by the following steps taking place:

  1. The temporary guardian agrees to terminate the arrangement
  2. Both parents of the child agree the arrangement should end
  3. There are no pending legal or child protection investigations
  4. There are no crimes or family law issues that affect either parent's legal status

Generally, if these criteria are met, the parents and guardian can jointly terminate the temporary guardianship and may not need to go to court.

In some cases, the temporary guardian must sign a statement of resignation. This is presented to the court for approval. So, the process may include minor court involvement.

Requesting The Court to Terminate A Guardianship

If a court previously ordered the guardianship at your request or over your objection, then you need to file in court to be heard. The first thing you need to do is petition the court outlining why the guardianship should end and your legal custody rights should be restored.

If you and the guardian continue to live in the same court jurisdiction, you will likely file an action before the same court that granted the guardianship. If the guardian and child have moved out of state, you may need to consult the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). It provides that in most circumstances addressing child custody, a party seeking change must file their petition in the appropriate family court in the child's home state. A home state is where the child lived for six months before you filed the petition.

Where a parent lost custody due to issues with mental health, substance abuse, or financial problems, the parent will need to show that they have addressed these problems. They may need to demonstrate to the court proof of treatment, stability, and financial capability to care for their child.

Court Process Before Ending Guardianship

The court has the authority to terminate the guardianship. If it finds good cause, it will do so through a court order. The court will look at several factors to determine whether or not to terminate the guardianship. These include:

  • Is the termination in the best interests of the child?
  • Is the child's parent stable and fit to regain legal custody?
  • What is the preference of the child? (This typically only applies if the child is older than 12 years old)

What Is the Difference Between Guardianship and Custody?

The terms "guardianship" and "custody" can be confusing or feel interchangeable. Custody, or "custody rights," refers to a parent's authority and responsibility to care for their child and make legal decisions for their child. It can be granted to one parent or shared between two parents.

Guardianship is the legal right to have full responsibility for a child. It includes custody rights such as care and decision-making. Guardianship occurs where authority resides in a non-parent adult. It may be voluntarily agreed to by the parents or ordered by the court when the parents object. Guardianship generally will not be a shared arrangement.

Additional Resources on Guardianship

This article covers a brief overview of getting your child back after a legal guardianship situation.

The following articles focus on nuanced topics or expand on important guardianship tactics:

Get Help With Your Guardianship Case

There are rigorous steps you need to follow to get your guardianship rights back. An experienced family law attorney can help by assessing your situation and determining the best way forward for you to become legal guardians of your kids again.

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Can I Solve This on My Own or Do I Need an Attorney?

  • Guardianship is always a court process
  • An attorney can help file a guardianship petition and represent your interests
  • Legal advice during the planning, court processes, and interviews is helpful
  • Your attorney can help you understand the final decision from the court

Get tailored advice for becoming or appointing a legal guardian. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Once new guardianship arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will. Consider creating a financial power of attorney so your agent can pay bills and make sure your children are provided for. A health care directive explains your health care decisions. It takes the decision-making burden off your children when they become adults.

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