Generally, guardianship enables other adults such as grandparents to care for children without terminating parental rights, as would occur if the child were adopted. [1] X Trustworthy Source Child Welfare Information Gateway Online portal managed by the U. S. Children’s Bureau providing resources related to childcare and abuse prevention Go to source Guardianship can provide stability for children while their parents or other custodial family are in the midst of change or upheaval. For example, if a single parent goes to jail, the child’s grandparents may want legal guardianship of the child. Once the parent is released from prison, she may desire to have that guardianship transferred back to her. Legal guardians essentially act as a parent for the child, making all the basic decisions such as schooling and medical treatment for that child. [2] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source Keep in mind that legal guardianship technically does not include financial responsibility for the child – this responsibility remains with the child’s parents provided they are alive and capable of providing financial support. [3] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source [4] X Research source
If the court appoints a guardian ad litem – a neutral third-party who evaluates the situation and represents the child’s best interests in court – one of the things he will consider is how will the child gets along with the potential guardian. [6] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source
As a basic matter, a guardian must be of legal age in your state – typically 18, but sometimes older. She also must have a genuine interest in your child’s welfare and be mentally and physically capable of caring for the child. [7] X Research source You also want to make sure that you’re comfortable with the guardian’s cultural background and beliefs. [8] X Research source For example, if the child is being raised in an Orthodox Jewish household and tradition, you may not want to transfer guardianship to someone who is an avowed atheist.
Since each court may require different forms, make sure you check at the specific court where you intend to ask for a transfer of guardianship. Typically, you want to use the court in the county where the child lives. [9] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source If you go to the clerk’s office and explain that you want to transfer guardianship of the child, the clerk should be able to provide you with the appropriate forms. [10] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source Along with the main petition for guardianship, you also may have to fill out other forms such as a child custody affidavit, through which you disclose where the child has been living for the past five years and the names and addresses of anyone else such as other close family members who may have a legal interest in your petition. [11] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source Typically the forms come with step-by-step instructions for filling them out. Reading those instructions thoroughly and making sure you understand them before you start filling out the forms will save you a lot of time and duplicated effort.
You need to make copies of all of these documents. Some of them you must include with the forms you submit to the court; others contain information the new guardian will need to carry out her responsibilities.
The person who fills out and files the guardianship petition need not be the person who will become guardian of the child if the court approves the petition. If you are the current guardian of the child and wish to transfer guardianship to another person, you may fill out the forms and propose that person become the child’s new guardian. [12] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source
You typically don’t have the right to a free attorney in family law cases. However, some states such as Maine provide free attorneys for parents in guardianship cases. [13] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source
If you were required to fill out any affidavits, these must be signed in front of a notary because they are written under oath. [14] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source After you’ve signed your forms, make enough copies so you have one copy for your records and additional copies for anyone you’re legally required to notify of the petition. [15] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source
You must pay a filing fee to initiate your guardianship case in the court. These fees vary among states and sometimes even among courts within each state. If you cannot afford filing fees, you should ask the clerk for an application to have the fees waived. You must disclose details about your income and finances, but if the judge approves your application you won’t have to pay any filing fees for your guardianship case. [16] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source
You provide legal notice by having a sheriff’s deputy deliver the papers you filed to the party personally, or by mailing the papers using certified mail. Either method ensures you have proof that the required parties knew about your petition. [17] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source You also may be required to send legal notice to the child if she is over a certain age and has not signed the petition indicating her consent. In Maine, for example, you must serve copies of the forms you filed to the child if she is over the age of 14. [18] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source
If your case is contested, consider hiring an attorney to represent you in court. Guardianship law can be complicated, and if someone disagrees with the transfer of guardianship you may need an attorney experienced in guardianship cases to look after your best interests and the best interests of the child. You may be able to find free or reduced-fee legal assistance if you don’t believe you can afford attorney’s fees. If you’re concerned about your ability to afford an attorney, check your local legal aid or family law clinic for resources.
Once you get to court, you have the burden of proving that your guardianship is in the child’s best interests. Depending on the situation, you also may have to prove that the child’s parents are incapable of caring for the child. [19] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source Generally, the judge will consider the relationship between the child and the proposed guardian, the moral character of the proposed guardian, and who can best fulfill the child’s physical and emotional needs with stability and continuity. [20] X Research source Judges also consider the preference of the child, the child’s ties to his community, involvement in school, and how a transfer would affect those ties and involvement. [21] X Research source
A guardian ad litem is a lawyer, psychologist, or other professional who has training in evaluating the needs of children in complex family situations. She will interview all parties involved as well as the child. [22] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source The guardian ad litem also may complete background checks on you or other adults living in your household, or ask to speak with friends and co-workers about you. Ultimately, the guardian ad litem compiles the information she has gathered and issues a written report to the court that outlines her conclusions on the best interests of the child along with her recommendation on whether guardianship is appropriate for the child in this case. [23] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source In some cases, the court may order a home visit or inspection of the location where the child would live if guardianship was transferred. [24] X Research source
In some circumstances, you may be able to avoid a protracted hearing if all interested parties agree to the guardianship. Although the judge still has to approve the guardianship, the process typically will be quicker and less formal. [25] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source
Since guardianship usually lasts until a child’s 18th birthday, transferring guardianship of a child from one guardian to another can be difficult even if all parties agree. The judge must review the transfer and will not approve it unless she believes it is in the best interests of the child, considering all circumstances.
If the judge grants your petition, you may be required to fill out additional forms accepting or acknowledging the guardianship. You also may be required to file annual reports with the court. The judge or the clerk typically will let you know of any further requirements or filings. [26] X Trustworthy Source Pine Tree Legal Association Legal advocacy group providing public resources related to civil rights and and services and the justice system Go to source Most states require that you sign an affidavit stating that you understand and accept the responsibilities of guardianship and will fulfill those responsibilities in accordance with the best interests of the child. [27] X Research source Once the judge’s final order is entered, make enough copies so you can provide them as needed to places such as the child’s school or doctor’s office. [28] X Research source
