When Guardianship May Be Necessary for a Child
Guardianship for a child generally becomes necessary when the child’s parents are no longer able to care for their child on a long-term basis. When a child no longer has a parent who can make decisions for them, an adult needs to be appointed as the caregiver and decision-maker for that child to ensure that the child is cared for in the absence of their parents. Without the authorization granted by a guardianship, caregivers can often find they are unable to access medical care, enroll the child in school, or make other critical decisions for that child.
There are also times when the parent cannot be physically present to the care for the child, and may not be an appropriate caregiver, as when a parent is incarcerated.
The purpose of guardianship is to ensure that the child has an appropriate and willing caregiver in the absence of their parents. Unlike adoption, guardianships are not permanent. They do not dissolve the parents’ parental rights, and they can be dissolved if the parent, or parents, are able to make a showing that they are now able and willing to care for the child and would be an appropriate caregiver. Additionally, guardianships end when the child turns eighteen and do not convey any inheritance rights, unlike an adoption.
How to Establish a Guardianship for a Child
For every child, there are two guardianship roles: guardian of the person and guardian of the estate. One person can hold both roles, but those roles can also be divided between multiple adults. The guardian of the person is responsible for making decisions for the child in the areas of care, support, education, and medical treatment. The guardian of the estate is responsible for any money or property belonging to the child.
Generally, guardians are family members or friends of the child who have an already established relationship with the child. In some circumstances, the guardian may already have been acting as a caregiver for the child and is seeking to formalize the situation by seeking guardianship.
Petition for Guardianship of a Minor
In order to become a child’s guardian, for either the person and/or the estate, the adult seeking guardianship must file a Petition for Guardian of a Minor stating both why the child needs a guardian and why this particular adult, or adults, would be an appropriate as guardian(s) for the child. The petitioner(s) must meet the following qualifications in order to be appointed:
- Be at least eighteen years old;
- Be a resident of the United States;
- Be of sound mind;
- Not be legally disabled; and
- Not have a felony conviction that involved harm or threat to a child.
Types of Guardianships
There are three types of guardianships: plenary, standby, and short-term guardians.
A plenary guardian is someone who assumes that role for the long-term and will only occur under certain circumstances. A plenary guardian can only be appointed by a judge, and only under the following circumstances:
- The parents are deceased;
- The parents are unable or unwilling to make daily decisions for the child;
- The parents voluntarily left the child with another adult and did not return;
- The parents agree to the guardianship;
- The parents are detained, arrested, removed, or deported because of immigration issues.
Once a guardian is appointed, that person cannot give up that role unless a judge rules: 1) that there is a parent willing or able to resume caring for the child; or 2) another individual is willing to assume guardianship of the child. Once the child turns eighteen, the guardian no longer has a formal responsibility or authority for the child.
The individual petitioning for plenary guardianship must provide information to the court about the whereabouts of the parents. The guardian must also provide the parent(s) with notice of the time and place of the hearing to appoint a guardian so that the parent(s) can object to the guardianship if they choose to do so. In the even that there is an able and willing parent whom the court deems appropriate, guardianship should not be granted because the guardian has not made a sufficient showing that guardianship is necessary.
A standby guardian is someone selected by the parent to become a guardian if a parent or current guardian is unable to care for the child due to illness, death, or long-term separation from the child. A standby guardian does not require a judge’s approval, but there must be a written designation of a standby guardian witnessed by two other people. A standby guardian must meet the following requirements:
- The parent or legal guardian dies;
- The parent or legal guardian consents;
- The parent or legal guardian can no longer make or carry out daily child care decisions for the child; or
- The parent or legal guardian is detained, arrested, removed, or deported because of immigration issues.
Finally, there is a short-term guardian. A short-term guardian can be appointed when a parent knows they will be unable to make daily decisions for their child for a finite period and that parent is willing and able to resume responsibility for the child when that time expires. One example would be a parent in the military who is going to be deployed. That parent could name a short-term guardian for the duration of their deployment, which would expire once the parent returned home and could resume responsibility for the child.
Like a standby guardian, the short-term guardianship does not require a judge’s approval but must be in writing and witnessed by two other people. The short-term guardianship should include an end date and generally should not last longer than a year. The short-term guardianship will also expire when the parent returns home and is able to resume responsibility for the child.
Children Age 14 and Over
It is important to note that children over the age of fourteen are to receive notice of when someone is seeking guardianship of them and can provide input to the judge and, if appointed, a Guardian ad Litem regarding who they want to as their caretaker. This can play an important decision in who is appointed as guardian if there are multiple individuals petitioning for guardianship of the child.