Permanent guardianship refers to a type of relationship between a child and an adult, or a caregiver. The adult guardian is responsible for the child’s, or ward’s, overall wellbeing. This includes their healthcare, housing, safety, and education. The guardian is also responsible for making important life decisions on behalf of their ward. This specific type of guardianship is generally granted by a court when they believe that it is in the minor child’s best interests to live with their guardian, as opposed to their parents.
In general, courts prefer to keep children with their parents. As such, guardianships will likely only be granted on a temporary, trial basis. This means that it is unlikely that permanent guardianship would be granted as a first step. Importantly, a guardianship can become permanent after a set amount of time, if it is necessary for maintaining the child’s best interests. However, parental rights do not need to be terminated in order for the guardianship to become permanent.
There are both financial and emotional responsibilities associated with being a child’s guardian. Financial support may only be available from parents if their parental rights have not yet been terminated. Permanent guardianship cannot be terminated unless one of the following conditions are met:
- The child turns eighteen;
- The child is adopted, gets married, joins the military, or is otherwise declared as an adult by a court;
- The child dies before turning eighteen; and/or
- The court terminates the guardianship.
How Is Permanent Guardianship Obtained?
Although laws and procedures may vary from state to state, there are generally six steps to obtaining permanent guardianship. These are:
- Locate the Correct Probate Court . The first step is to locate the correct probate court for the county in which the child lives, or the court in the county in which there are any previous child custody orders;
- Locate the Child’s Legal Documents. It is important to note that different courthouses may require different legal documents. This is another reason to locate and contact the correct court before moving forward with filing a petition. The appropriate court can inform you of what documents you will need. In general, you will need a copy of the child’s birth certificate and the death certificates for the child’s parents if they are deceased. You will also need evidence supporting your claim that the child’s parents are unfit to care for the child, and why it is in the child’s best interests for you to be their guardian;
- File a Petition. All court paperwork must be filled out correctly and within the proper filing deadlines. You will be providing your information, as well as the child’s information and any known information about the child’s parents. Additionally, you will be filing a petition stating the interest of guardianship for the child, and paying any necessary fees. If you have a letter of consent from the child’s parents, you will need to file that as well;
- Notify the Child’s Parents. You must provide notice of the filing to the child’s parents before the court sets a hearing date. The court will want to give the parents a fair trial and an opportunity to present their side of the story. The parents should be given the chance to object or consent to the guardianship. You can notify the parents through either certified mail or a process server. If the parents cannot be located, notice may be given to a relative who knows how to locate them. If the parents are deceased, notice may be given to the person with legal custody, or the county’s human services or social services departments;
- Attend Guardianship Hearing. You must attend any hearings set by the court. Bring your evidence and be prepared to show why it is in the child’s best interests for you to be their guardian; and
- Comply With Court Requirements. The court may conduct home visits, interviews, and criminal background checks in order to ensure the child’s best interests are being protected. You must also comply with the court’s requirement of regular reporting, and sign an oath accepting the legal responsibilities of the guardianship. Failure to comply with any of the above mentioned requirements could terminate the guardianship.
What If the Child’s Parents Do Not Consent?
Both living parents must consent to the guardianship. Alternatively, the child has to have been abandoned, or parental rights must have been terminated. Further, a judge must have ruled it in the child’s best interests to be removed from the parent’s custody. Courts may still approve guardianship in situations in which the parents do not consent.
An example of this would be if the parents are found to be unfit. However, the child’s other relatives may object to the guardianship and create an issue.
Do I Need an Attorney for Help Obtaining Guardianship of a Child?
Obtaining guardianship of a child is a complex process, and the safety and wellbeing of the child must be considered above all. If you are wanting to become a child’s guardian, you should consult with a skilled and knowledgeable family law attorney.
An experienced family law attorney can help you file the necessary paperwork and gather evidence to support your claim while guiding you through the process. If any disputes arise, the attorney can guide you through those as well. Additionally, the attorney will represent you in family court as needed.