The law recognizes that there is a natural way to decide who gets to take care of a person and the courts or other state officials don’t have to get involved. Children are cared for by their parents. Adults provide for themselves. But sometimes this natural, starting point breaks down. In such cases, there are formal, legal methods to solve the breakdown. Guardianship is one of these methods. My focus here in on guardianship for children.
A guardian for a child is a non parent whom the law entrusts with the care of a child whose parents are either deceased or unfit, unwilling, or unable to parent the child. The guardian has an ongoing duty to periodically update the court (usually annually) with how the child (called a ward) is doing. The guardianship will last until the child turns 18 unless either (a) the guardian isn’t properly fulfilling his duties as is replaced or (b) a parent works hard and proves the it is best for the child to be returned home.
When does a child need a guardian? A child whose parents have died clearly need a guardian (unless adoption is available). Usually, the situation arises when the parents are unfit, unwilling, or unable to properly parent the child. Oftentimes, the facts that show any of the “un” factors are intertwined. A parent who is so callous towards his children that he is “unwilling” to parent is often neglectful and abusive, giving rise to unfitness. Likewise, some mental illnesses that make a parent “unable” to properly parent can also cause them to be indifferent to their children and therefore “unwilling” to parent. It is fairly normal to see all three things in a parent: inability, unfitness, and unwillingness.
Grandparents are some of the most common guardians. They find themselves watching their grandchild more and more, maybe even weeks or months at a time, while their own child and the other parent of the grandchild is off partying, using drugs, committing crimes, or just “blowing off” the responsibilities of parenting.
Drug use is probably the single most common factor for causing the need of guardianship of children. Drug use leads to many of the issues that necessitate guardianships such as abuse and neglect. Drug use can also contribute to a mental instability or illness, causing a person who once could adequately parent to no longer be able to do so.
How to get a guardianship of a child?
The guardianship process is fairly straightforward. You file a petition in your local probate court alleging the legal grounds for why a guardianship is necessary. The child’s parents get formal notice and a copy of the petition so they know when the court date is. They can hire an attorney and contest the guardianship, of course. If the child is of a certain age (e.g. 14), you also have to get their written consent. An attorney (guardian ad litem) will be appointed to represent the child in an attempt to assure that the outcome will be in the child’s best interests. In a contested case, the proceeding can be lengthened as the parties do “discovery” (the sharing of relevant documents and information and the answering of questions relating to the case). Ultimately a court hearing will be held.
In an uncontested case, the person applying for guardianship (the petitioner) will be on the stand for 5-10 minutes and testify to the basic facts requiring a guardianship. The process is quick, easy, and not as stressful as people think when they think of court.
A contested trial is much more grueling. This can involve a grandparent having to present evidence as to why his or her own child is an unfit parent. A trial can take a full day or more.
The law has a variety of ways to deal with custody issues for children. Don’t assume a guardianship is or is not on your list of good options. Other possibilities can include modification of an existing custody order, adoption, temporary power of attorney, grandparent’s visitation, third party custody proceedings, equitable parentage, and possibly other legal theories. Consult with an experienced family law attorney such as the family lawyer Houston MO locals turn to figure out what is best for you and the child you are trying to help.
