What is a Guardianship?

If you have ever signed for your child, you have probably noticed under the signature line it says “parent/guardian,” but have you put any thought into what it means to be a “guardian”? In general, someone’s guardian is the person who looks after their health, safety, and welfare. Legally, a child’s guardian is someone who has an order from the court granting him/her guardianship of that child. A guardianship grants the adult physical and legal custody of the child.

This means that the child is to live with the guardian and the guardian is able to make medical and educational decisions on behalf of the child. A child’s guardian is responsible for providing the child with food, clothing shelter, medical care, and education. A child can have multiple guardians, and the children’s parents remain the child’s parents, but their rights of custody are suspended by the guardianship. This is different than adoption, where parental rights are terminated.

Now that you know what a guardianship is, let’s get into the reasons why someone would want to obtain one. First, anyone who would like to petition for appointment of guardianship of a child should have a good reason for doing so. The judge who hears the case will be making his/her decision based on the best interest of the child. If a guardianship is not necessary or convenient to the child, the judge will not grant the order. So what are some good reasons for a  guardianship?

• The child’s parents are unable or unwilling to take care of the child.
• The child’s parents are harmful to the child.
• The child’s parents cannot provide the child with adequate food, shelter, and medical care.
• The child’s parents have passed away.
• A guardianship of the estate can be obtained if the minor owns or is about to receive property, and a parent may act as guardian of the estate.
• When a parent is terminally ill, and remains a guardian as well. This is called a successor guardianship.

There could be other reasons for a guardianship.  If the prospective guardian’s request for appointment does not show that it is not necessary or convenient for the minor’s benefit, then the guardianship would be denied. Note that parents can consent to the appointment of a guardian, or they may contest a guardianship. If one of the parents contest the guardianship, the guardianship will be granted only if the court finds that parental custody would be detrimental to the minor’s interest and the guardianship is in the minor’s best interest. But if the proposed guardian has acted as a stable parent for a significant time period, then a presumption is in favor of the proposed guardian.

Parents are entitled to receive notice of a petition to appoint a guardian and the hearing date, and the court will only excuse notice to the parent with a showing that efforts were made to contact the parents. Other second degree relatives such as uncles, aunts, grandparents and siblings, have a right to receive notice of the guardianship hearing as well.

A proposed guardian will be subject to interview by either the Department of Children and Family Services if not related to the child, or the court probate investigator if they are related to the child.

If you or someone you know is interested in becoming the guardian of a child, our office can help.