Legal Guardianship and Child Custody

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 What Is a Legal Guardianship?

In a family law setting, a legal guardianship can be described as a special type of legal arrangement wherein an adult agrees to assume legal responsibility for a minor who is unable to take care of themselves. The adult party in a legal guardianship is known as the “legal guardian”, whereas the child or minor is referred to as their “ward”.

The main purpose of a legal guardianship is to ensure that there is someone who can provide proper care and protection for a ward. A legal guardianship can also be arranged if the child needs someone to make legal decisions on their behalf.

In most instances, legal guardians are generally selected in one of two ways: they can either be appointed by a family law court or included in a legal instrument called a “guardianship agreement”. A child’s parents may also draft a will that contains the name of the person whom they wish to become their child’s legal guardian in the event of their death, incapacitation, or absence.

For example, if a child’s parents were in a serious accident that caused both parents to lapse into a coma, a court could either appoint a close family member to become their temporary legal guardian. They may also review the parents’ will documents and designate the person named therein the child’s legal guardian. Depending on the circumstances, a guardian may be granted temporary, permanent, physical, or legal guardianship over a child.

Finally, it should be noted that each state has separate laws and procedural requirements concerning how to establish a valid legal guardianship. Thus, even if you use the standard court forms to create a legal guardianship agreement or to petition a court to become a legal guardian, you should still consider hiring a local family lawyer to review your documents.

Who Can Be a Legal Guardian?

As long as an individual has reached the legal age of majority in their state, which is usually around 18 years of age, they can be appointed as a child’s legal guardian. The individual must also be able to provide proper care for the child as well as have the capacity to make legal decisions on the child’s behalf.

Generally speaking, most legal guardians are usually persons who are either close family members and/or friends of the ward or the ward’s parents. In cases where a court is forced to choose an unrelated person, they will often select someone who has been recommended by a state child welfare program.

Some other factors that a court may consider when deciding whether or not to grant an individual legal guardianship over a child or minor include:

  • The financial stability and amount of time that the person will realistically be able to dedicate to properly care for the child.
  • Whether the person has a criminal record, and if so, if their crimes involve those committed against children. Even if they do not have a criminal record, the court may consider the person’s moral character as well.
  • The health and age of the prospective legal guardian (e.g., are they physically healthy and mentally competent?).
  • Whether the person has an ulterior motive for petitioning to become the child’s legal guardian, such as a financial stake if they are appointed legal guardian.

In addition, some individuals will agree to be appointed to multiple wards so that they can collect guardian’s compensation. Depending on the state, some jurisdictions may pay court guardians as much as up to nearly $50,000 to care for a ward. Thus, courts may also consider how many wards are currently assigned to an individual court guardian and whether the money is the only incentive they have to take on this great responsibility.

How Can I Establish a Legal Guardianship?

As previously mentioned, each state has its own laws and procedural requirements when it comes to appointing a legal guardian and establishing a legal guardianship. In general, however, some of the steps that a party may have to take to become a legal guardian include the following:

  • Fill out the necessary forms to petition the local court for appointment of legal guardianship (note that these forms will also vary by jurisdiction);
  • Hire an attorney or family law facilitator to review the forms after they are complete, but before they get submitted to the court;
  • Make several copies of the finalized version of those forms;
  • File the forms with the court and pay any necessary filing fees;
  • Provide notice by serving copies of the filed documents on all relevant parties (e.g., child welfare agencies, family members, etc.);
  • Obtain proof of service documents after the notice has been served and file them with the same court;
  • Schedule an interview with the court investigator and respond to all questions that they ask honestly;
  • Attend the court hearing where a judge will decide whether to grant the petition; and
  • Finally, file the court order that contains the decision with the court clerk.

How Are Legal Guardianship and Child Custody Similar?

The terms “legal guardianship” and “child custody” are often used as if they mean the same thing. However, it is important not to confuse the two concepts because while there are some similarities between them, there are several major differences as well.

For instance, child custody issues typically arise in connection with divorce and marital separation cases. Thus, they usually involve the parents of a child and tend to focus on the rights that each parent will have over the child, such as making legal decisions on the child’s behalf, retaining physical custody of the child, and/or securing the right to visit the child.

Child custody cases can also be used to obtain court approval of a child custody arrangement, to make a child custody agreement enforceable, and to modify the amount of child support that a parent is required to pay each month.

Unlike most child custody cases, legal guardianship matters will not stem directly from a divorce, but rather when a court has deemed that the child’s parents are either absent, unfit, or deceased. For example, a family law court may appoint an individual to become the legal guardian of a young child if both the child’s parents are in prison. Accordingly, the parties in these cases are usually a third party, not the child’s parents.

As for how legal guardianships and child custody issues may be similar, both subjects are primarily concerned with the well-being and legal protection of a child. Like the parents in a child custody arrangement, legal guardians can also be granted the authority to retain physical and legal custodial rights over a child.

Also, once a child has been placed in a safe environment, both parents and legal guardians will need to petition the court for approval if in either instance the parties wish to modify or terminate the original court order.

One other similarity between legal guardianships and child custody cases is that the outcome for either one of these types of cases is almost always determined by applying the child’s best interest standard.

Is Legal Guardianship the Same as Adoption?

Unlike a legal guardianship, an adoption permanently alters the legal relationship between a child and their biological parents. Once a child gets adopted, the biological parents must give up all of their parental rights and obligations to the child. These rights and obligations are transferred to the child’s adoptive parents during the adoption process.

After the adoption process is complete, the adoptive parents will then be considered the child’s legal parents in the eyes of the law. This means that the adoptive parents will now have the right to make decisions over how they wish to raise the child.

Accordingly, the child’s biological parents will no longer have a duty to support the child in any form. The child will also not be permitted to automatically inherit any property in the event of their biological parents’ deaths.

On the other hand, a legal guardianship will not necessarily affect the child’s existing legal relationship with the parents or eliminate any parental rights. This is because many legal guardianships are only set-up as temporary arrangements. Thus, once the child’s parents are able to care for them again, the court can terminate the legal guardianship.

Also, in some cases, a legal guardian may only have certain rights, as opposed to all of them. For example, a legal guardian may be ordered to physically care for a child, but the child’s parents may still be in charge when it comes to making legal decisions about the child, or vice versa.

What If a Parent Already Has Custody of the Child?

It is very important to keep in mind that although a legal guardianship is considered a type of legal relationship that authorizes a guardian to exercise certain rights over the child, it does not terminate the legal relationship that exists between the child and their biological parents. Rather, a legal guardianship will typically coexist with the legal relationship that the parents have with the child.

However, if the court finds that the child’s parents would endanger the safety and well-being of the child, then the legal guardian or another party may petition the court for an emergency temporary guardianship. Again, the court will determine whether to grant approval of an emergency temporary guardianship by applying the child’s best interest standard.

How Does Guardianship End?

In most cases, a legal guardianship is typically terminated by the court. For instance, the court may decide to terminate a legal guardianship if the circumstances supporting the appointment no longer exist (e.g., if the child’s parents were incarcerated for a non-violent crime, have served their time, and can now take care of the child again).

Another reason that a court may terminate a legal guardianship is if the legal guardian was appointed to care for and/or make legal decisions on behalf of a minor and the minor has since reached the age of majority or adulthood.

Some other factors that may lead to a termination of a legal guardianship include:

  • When the ward dies;
  • The child gets permanently adopted; and/or
  • If the legal guardian themselves petitions the court to be removed as a ward’s guardian.

Do I Need a Lawyer If I Am Trying to Apply for Guardianship?

Petitioning to become a child’s legal guardian is a major undertaking and thus should be taken very seriously. Therefore, if you need help with the application process or are involved in a dispute over a legal guardianship matter, then you should contact a local guardianship lawyer immediately.

An experienced child custody lawyer will also be able to explain how the legal guardianship process works and what your duties are if you are appointed a child’s legal guardian. Also, if there is a dispute concerning your legal guardianship or rights, your lawyer will be able to represent your interests in court during any related court hearings.


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