How to Establish Guardianship of Child – FAQs

What is the procedure for establishing guardianship?

The appointment of guardian rests solely on whether the court is persuaded that there is enough evidence to support the allegation of incapacity as defined by statute. How statutes define incapacity is critical in determining whether the proposed ward is in need of a guardian. A court will appoint a guardian for a minor if the minor does not have any family member who can take decisions on behalf of the minor.

The process begins with the filing of the petition in the court along with the filing fee. You must also file the letter of consent signed by the child’s parents. The court will then interview you and sometimes the child and others who have an interest in the proceeding. The court may order inspection or home visit and a criminal background check will be conducted on you. The exact procedure varies from state to state. Please check with your state laws.

The courts generally use the best interest of the child standard when deciding a guardianship petition. Your petition will be allowed if the court finds that it is in the best interest of the child to do so. In many states a person appointed the guardian must sign an oath agreeing to discharge the responsibilities of the guardian.

Can a parent be appointed as a guardian for his or her own children?

If someone leaves something for the child under a will, the child will need a guardian until the child attains the age of majority. If a parent is leaving some valuable assets to the child under a will, the parent must appoint a guardian for the child. A guardian is someone who looks after a child’s needs such as food, clothing, shelter and medical care. A guardian also manages the child’s finances. A guardian has certain legal rights and obligations towards the child and does not terminate the existing parent child relationship.

The selection of a guardian is a very important. The chosen guardian must willing and able to perform the tasks in the best interest of the ward. Appoint someone who you can trust and who is willing to be the guardian. Ideally your will should appoint one guardian and also name a person as the alternate guardian – if the first person is unable to act as the guardian, the latter will be appointed the guardian. If you have more than one child, you can appoint the same guardian for all children or different guardians for different children.

Here are some points you should keep in mind when choosing a guardian:
• Age of the guardian – he or she must be an adult under the state law
• The person must be genuinely interested in the welfare of your children
• The person must have the physical capacity to fulfill the guardian’s responsibilities
• The person must have sufficient time to discharge the responsibilities
• The affect the guardians children can have on your child(ren)
• The person’s finances – you don’t want someone who cannot take care of his own children because of financial constraints
The person’s moral values

Should I explain to the court why I chose a particular person as the guardian?

The judge may sometimes ask you why you chose a particular person. The judge will look to see if the appointment is in the best interest of the child. You should be in a position to explain the reason(s) why you chose the named person. The judge will consider:

• the preference of the child(ren)
• whether the person can provide continuous care and stability
• whether the person can best fulfill the needs of the child(ren)
• the relationship between the person and the child(ren)
• the moral character and overall personality of the person

Is it possible to establish guardianship without the consent of the parents?

Usually guardianship is granted if

• there is consent of the living parent(s)
• the child is abandoned by the parents or the parental rights have been terminated or
• a judge determines that removing the child from the custody of the parents is in the child’s best interest

Depending on the circumstances, it may be possible to get guardianship without the consent of the parents. For example parental consent will not be needed if it can be shown that the parents are unfit. Consult with an experienced attorney.

Other family members of the child(ren) must also be notified of and have the right to object to your petition. You do not require their consent but their opposition can prove detrimental for your petition. Seek the assistance of an experienced attorney.

Is a legal guardian financially responsible for the child?

Depending on the circumstances, a legal guardian may be financially responsible for the child. For example if the biological parents are alive and have rights to the child, then they may be responsible for the child but when the parental rights of the biological parents have been terminated, they will not be responsible for the child. Legal guardians may be eligible for assistance in the form of social security. Legal guardians can also apply to the court for a support schedule. If the court sets up a support schedule, the amounts so received must be spent on the child and the court will review the accounts from time to time. If you have been appointed a guardian of a child under a will, the deceased would have left money for the exclusive use for the welfare of the child. A third party will monitor how you spend this money.

What should I consider before I agree to become a guardian?

Guardianship is not easy. It comes with a host of responsibilities. Here are a few things you should consider before you take a decision:

• Are you willing to discharge your responsibilities as a guardian?
• Are you willing to accept full liability for the actions of the child(ren)?
• Can you manage the finances and keep proper records?
• Are you willing to go to court for necessary permissions as and when needed?
• Your relationship with the child
• Do you want to care for the child?
• Your relationship with the child’s parents
• Have the consented to your decision to become the child’s guardian?
• The impact the guardianship will have on your family, personal and professional life
• Do you have the energy needed to raise a child?
• Do you have the time?
• Your finances – will the guardianship affect your finances?
• Are you willing to use your own money to take care of the child?
• Any relatives of the child who may object to the guardianship

Before you agree to be a guardian, think carefully whether you can indeed be the guardian. Speak to an attorney if needed.

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