The Post-Divorce-Parenting Glossary

• What is guardianship?
• What does guardianship of an incapacitated person entail?
• Who can be a guardian?
• What are common reasons for guardianship?
• What are the responsibilities of a guardian?
• Are guardians financially responsible for a child?
• What considerations should a person consider before assuming guardianship?
• How does guardianship get established?
• What common issues are considered by the court when deciding who could be an appropriate guardian?
• How does guardianship differ from adoption?
• What is temporary guardianship?
• What type of notification is involved in guardianship?
• Can a person establish guardianship if the parents do not consent?
• What is a guardian ad litem?

What is guardianship?

Guardianship of a minor (an individual under the age of eighteen) refers to an order of the court for someone (over the age of eighteen) other than the child's parent, to assume child custody, manage the child's property, or both.  A family court, probate court, juvenile court and district court all have the authority to designate a guardian.

What does guardianship of an incapacitated person entail?

Both guardianship of a minor and guardianship of an incapacitated person entail a person appointed by the court to make decisions on the behalf of an individual who is unable to do so on their own. When an individual is deemed physically or mentally disabled, resulting in them being unable to care for themselves, a guardian is often necessary to manage and protect that individual's overall welfare.  When a physical or mental disability leaves a person incapacitated, a guardian is often appointed to handle the person's care and affairs.

Who can be a guardian?

Anyone may be a guardian; however, often guardians are relatives, such as grandparents.  Close friends of the family are often appointed as guardians.  A petition for guardianship must be filed in the county where the child resides.

What are common reasons for guardianship?

There are a variety of reasons guardianship of a minor is sometimes needed. Guardianship may be needed when one or both parents: are activated for military duty, have a serious mental or physical illness, have to enter an alcohol/drug rehab for a period, are in jail, have an active alcohol or drug problem, have a history of being emotionally, physically, or sexually abusive.  In reviewing, the case the court considers what is in the best interest of the child.

What are the responsibilities of a guardian?

In a guardianship of a child, the guardian has the same responsibilities to the welfare of the child as that of a parent. A guardian has both physical custody and legal custody.  Legal custody is the component of child custody that gives the guardian the right to make important long-term decisions regarding the child's development.  The following are responsibilities that a guardian has for the child: safety and protection, food, clothing, and shelter, physical and emotional growth, medical and dental care, education and special needs.

Are guardians financially responsible for a child?

When the biological parents still have parental rights for the child, such as visitation, they are then responsible for paying child support; however, when the parents' rights have been dissolved, they are not legally responsible for providing financial support for the child(ren's) care.

Guardians may apply for financial assistance.  Often guardians, receive financial support through social security.  A guardian may petition the court to establish a schedule for financial support. All the child support funds must go toward the child's care and development. A guardian is responsible for providing to the court an annual inventory and accounting of assets pertaining to the minor or minors under their care.

What considerations should a person consider before assuming guardianship?

Assuming the role of guardianship is a very important decision. You may have the ability to make a profoundly positive influence, such as offering stability during a period of significant change in the child's life. Yet being a guardian is not to be taken lightly; it takes a significant amount of dedication. Consider the following questions if you are thinking about pursuing guardianship:

• Am I prepared to accept full liability for the child's decisions and behavior?
• Do I have a healthy relationship with the child?
• Am I ready to take the time and energy to help raise this child?
• Will I have enough funding even if support is provided through social security or the child's parents?
• Am I able to be consistent in my responsibilities as a legal guardian?
• Do I have experiences that would help prepare me for being a legal guardian?
• Do I fully understand what it means to pursue and be a legal guardian of a minor?
• Am I ready and prepared to go through the necessary court proceedings to establish guardianship and the financial support for care of the child?
• What are the situational factors? Do the parents have rights to the child? Are they willing and able to provide financial support? Are the parents hostile?
• Am I willing to provide financial support for the child?
• Are there going to likely be problems with the child's relatives or extended family?
• How will guardianship impact my lifestyle?
• Am I ready to accept the changes that guardianship will bring to my life and lifestyle?

Finally, if you are wanting to pursue guardianship it is advisable to contact a family law attorney.

How does guardianship get established?

A person may establish guardianship of a minor by filing a petition with court in the county where the child resides along with a filing fee. The petition needs to state the reason for seeking guardianship, and why it is in the child's best interests.  If the minor is under the age fourteen the court may nominate a guardian.  When fourteen or older the minor child may nominate the guardian on the petition before a notary public, justice of the peace, or municipal clerk. Along with the petition a notice to assent from the parents must be received by the court. Once this occurs, a hearing is held whereby the court will set up interviews with the potential guardian, the child's parents (if appropriate), the child (if appropriate), and any other parties involved. The court may order investigative home visit, and perform a criminal background check of the nominated or potential guardian.

Ultimately the courts are guided by the best interest of the child standard. If, after reviewing all the information gathered from the interviews, home inspection, and background check, the court believes it is the child's best interest, legal guardianship will likely be awarded.

What common issues are considered by the court when deciding who could be an appropriate guardian?

The court will consider the following circumstances when deciding if guardianship is in the child's best interests:

• The child's preference (depending on age and maturity)
• Who is able to provide the most stability and continuity of care
• The relationship between the potential legal guardian and child(ren)
• The moral character, ability, and history of conduct of the nominated potential guardian
• Who can best meet and fulfill the child's needs
   

The majority of states require that a guardian sign an oath declaring that they acknowledge and agree to take on the responsibilities of guardianship. When approved, the judge will create a court-order to establish guardianship.

How does guardianship differ from adoption?

A guardianship differs significantly from an adoption. In a guardianship parents still have parental rights and can be granted contact with the child.  If the parents demonstrate that they are able to resume their parental roles the court can end the guardianship. Therefore a guardianship does not end the legal relationship between a child and his or her biological parents.  Certain responsibilities, such as providing financial support for the child are still required by the biological parents when their child(ren) are under the care of a guardian (unless the biological parents have lost their parental rights). The court may order or require a guardian be supervised by the court. In a guardianship situation, if the biological parents die without a will, the child automatically has certain rights to inherit their biological parents' estate.

In an adoption the biological parent's rights are permanently removed. Therefore the biological parents are no longer responsible for the care of the child, such as providing financial support. The legal relationship between the adopted child and adopting parents is final and considered the same as that of a birth family. An adopted child inherits from their adopted parents, the same rights as a birth child would. The court does supervise adoptive families.  A child that has been adopted does not have automatic inheritance rights if the biological parents die without a will.

Unlike the requirements for adoption, caregivers may assume legal guardianship of a child in out-of-home care without termination of parental rights.  Legal guardianship is more durable than transferring custody to caregivers. However, the process of legal guardianship is more complicated. Typically guardianship is sought by caregivers who are relatives, such as grandparents, attempting to establish a consistent or permanent home for a minor while continuing the connection with extended family members.

What is temporary guardianship?

At times, emergency temporary guardianship is required to protect the welfare of a minor or minors in a crisis or emergency situation. Once the petition is filed, a court hearing is usually scheduled that day. If emergency temporary guardianship is granted, the order for guardianship is only valid for 30, 60, or 90 days. The steps toward full guardianship will be provided with the temporary order for guardianship. Each party, usually the biological mother and father, will be notified of the order for temporary guardianship.

What type of notification is involved in guardianship?

If a person is seeking guardianship when it is not an emergency, all parties involved must be notified after all necessary papers have been filed with the court. Again, typically the biological mother and father are the appropriate parties to be notified but other parties may need notice as well.

Can a person establish guardianship if the parents do not consent?

Typically no.  A judge usually will only grant guardianship if the parents consent (both parents unless both are not available).  Situations that would permit legal guardianship of a child without the parent's consent usually involve demonstrating that the parents are unfit.  Typically unfit parents are those who have abandoned or neglected the child or have been emotionally, physically, or sexually abusive.  A family law attorney is needed in such a situation.

What is a guardian ad litem?

A guardian ad litem is an individual designated by the court to represent the best interests of a minor through a court proceeding. Guardian ad litem's are often a parent, relative, or attorney. Certain states order a guardian ad litem during divorce or separation child-custody cases, where significant child custody issues are involved.

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