Guardianships of Minors:
When is One Needed?
How Is One Obtained?
How Can One be Terminated?
A guardian is an individual appointed by either the Probate Court or the Juvenile Court. The individual for whom they are appointed is called a ward. A guardian is appointed when the court determines that the ward is a minor, that is under the age of eighteen. The court may appoint a guardian for a minor child who is under the age of fourteen. If the child is above the age of fourteen, he or she may nominate his/her own guardian, and if approved by the court, the person who is nominated may serve in that capacity. An individual who is appointed as a guardian for a minor child, serves in that capacity until discharged by the court, or until the minor reaches the age of eighteen. Additionally, should the minor marry prior to reaching the age of eighteen, the guardianship will also be terminated.
A guardian has custody of the person of the ward, and may make decisions relative to medical treatment, education, and where the ward will reside. The guardian also has the care and management of the minor's estate.
There are several situations when a guardian may be given exclusive care and custody of a minor child. These include the following:
a. When the court orders upon the written consent of both parents; or
b. When the court, after notice to the parents or a surviving parent, finds both parents or one parent unfit for custody; or
c. When the court finds one parent unfit and the other parent files a written consent to the guardian to have custody.
A guardianship may be necessary for a variety of reasons. Some of the most common reasons are when either one or both parents are incarcerated, or have a drug or alcohol addiction such that it impairs their ability to parent the child, or are unable or unwilling to appropriately parent, or have mental health issues that interfere with his/her ability to effectively parent the child. Often a grandparent or grandparents, or other family member petitions the court to be named guardian. In many situations, parents will consent to the guardianship, and sign their assent to the petition. In the event that a parent does not assent, and/or his/her whereabouts are unknown, the court may order that notice is provided by way of publication.
If there is an emergency and/or immediate need for a guardian to be named for the child, the court will appoint an individual as a temporary guardian. An individual's appointment as temporary guardian remains in place for ninety (90) days. In order to obtain a temporary guardianship, it is necessary to file the Petition for Guardianship, a Motion for Temporary Guardianship, and an Affidavit Disclosing Care or Custody Proceedings, as well as an Emergency Affidavit detailing to the court the reasons that an emergency guardianship is necessary. Prior to any court hearing on a temporary guardianship, or permanent guardianship, whichever occurs first, the proposed guardian is required to complete a guardianship intake sheet. The court intake form requests specific information regarding the proposed guardian or guardians, including but not limited to, information as to any current or former involvement with the Department of Children and Families (formerly known as the Department of Social Services), whether the proposed guardian receives assistance from the Department of Transitional Assistance, and what, if any, court involvement he/she has had.
This information is reviewed by the Probation Department, with the results provided to the judge, who will make a determination as to whether to appoint the proposed guardian for the child.
The appointment of a guardian for a minor child does not dissolve the parent/child relationship. However, the court can provide for the guardian to have exclusive custody based on a finding of parental unfitness. Therefore, while the parent/child relationship has not been severed, as in an adoption, the court grants the guardian discretion as to what, if any, contact a parent will have with the child, unless specified in a court order. When a non-parent, such as a grandparent or other family member, seeks guardianship of the minor child over the objections of a fit parent, the court must consider the rights of the fit parent who is opposing the guardianship. The matter of whether or not to award a guardianship is not based solely on the best interest of the child, without a showing of unfitness of the parent, or a need to protect the child from serious harm.
The court may revoke or terminate the appointment of a guardian if the parties petitioning for the revocation, that is the parent or parents, proves a substantial and material change of circumstances, and if that revocation/termination is in the child's best interest. A parent has a right to have the guardianship of his/her child revoked unless the parent is shown to be unfit.
A guardianship may also be terminated if the guardian seeks to have his/her appointment terminated, and all parties consent to that termination. This must be presented to the court for allowance. The guardianship terminates automatically when the child attains his/her eighteenth birthday, or marries.
The guardian may request the court order the parent, or parents, to pay child support, provide health insurance, and to pay the uninsured medical expenses of the minor child as long as the guardianship remains in place. While a guardianship of a minor ends on the ward's eighteenth birthday, if that child continues to live with the former guardian, the "custodial adult" may file a Complaint in Equity, to have the parent continue paying child support and/or college expenses after the guardianship has been terminated, if the child is not emancipated.