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Guardianships of Minors:
When is One Needed? How Is One Obtained?
How Can One be Terminated?
A
guardian is an individual appointed by either the Probate Court or
the Juvenile Court. The
individual for whom they are appointed is called a ward. A guardian is appointed when
the court determines that the ward is a minor, that is under the age
of eighteen. The court
may appoint a guardian for a minor child who is under the age of
fourteen. If the child
is above the age of fourteen, he or she may nominate his/her own
guardian, and if approved by the court, the person who is nominated
may serve in that capacity.
An individual who is appointed as a guardian for a minor
child, serves in that capacity until discharged by the court, or
until the minor reaches the age of eighteen. Additionally, should the
minor marry prior to reaching the age of eighteen, the guardianship
will also be terminated.
A
guardian has custody of the person of the ward, and may make
decisions relative to medical treatment, education, and where the
ward will reside. The
guardian also has the care and management of the minor's estate.
There
are several situations when a guardian may be given exclusive care
and custody of a minor child.
These include the following:
a.
When the court orders upon the
written consent of both parents; or
b.
When the court, after notice to
the parents or a surviving parent, finds both parents or one parent
unfit for custody; or
c.
When the court finds one parent
unfit and the other parent files a written consent to the guardian to
have custody.
A
guardianship may be necessary for a variety of reasons. Some of the most common
reasons are when either one or both parents are incarcerated, or have
a drug or alcohol addiction such that it impairs their ability to
parent the child, or are unable or unwilling to appropriately parent,
or have mental health issues that interfere with his/her ability to
effectively parent the child.
Often a grandparent or grandparents, or other family member
petitions the court to be named guardian. In many situations, parents will consent to the
guardianship, and sign their assent to the petition. In the event that a parent
does not assent, and/or his/her whereabouts are unknown, the court
may order that notice is provided by way of publication.
If
there is an emergency and/or immediate need for a guardian to be
named for the child, the court will appoint an individual as a
temporary guardian. An
individual's appointment as temporary guardian remains in place for
ninety (90) days. In
order to obtain a temporary guardianship, it is necessary to file the
Petition for Guardianship, a Motion for Temporary Guardianship, and
an Affidavit Disclosing Care or Custody Proceedings, as well as an
Emergency Affidavit detailing to the court the reasons that an
emergency guardianship is necessary. Prior to any court hearing on a temporary
guardianship, or permanent guardianship, whichever occurs first, the
proposed guardian is required to complete a guardianship intake
sheet. The court intake
form requests specific information regarding the proposed guardian or
guardians, including but not limited to, information as to any
current or former involvement with the Department of Children and
Families (formerly known as the Department of Social Services),
whether the proposed guardian receives assistance from the Department
of Transitional Assistance, and what, if any, court involvement
he/she has had.
This
information is reviewed by the Probation Department, with the results
provided to the judge, who will make a determination as to whether to
appoint the proposed guardian for the child.
The
appointment of a guardian for a minor child does not dissolve the
parent/child relationship.
However, the court can provide for the guardian to have
exclusive custody based on a finding of parental unfitness. Therefore, while the
parent/child relationship has not been severed, as in an adoption,
the court grants the guardian discretion as to what, if any, contact
a parent will have with the child, unless specified in a court
order. When a non-parent,
such as a grandparent or other family member, seeks guardianship of
the minor child over the objections of a fit parent, the court must
consider the rights of the fit parent who is opposing the
guardianship. The matter
of whether or not to award a guardianship is not based solely on the
best interest of the child, without a showing of unfitness of the
parent, or a need to protect the child from serious harm.
The
court may revoke or terminate the appointment of a guardian if the
parties petitioning for the revocation, that is the parent or
parents, proves a substantial and material change of circumstances, and
if that revocation/termination is in the child's best interest. A parent has a right to have
the guardianship of his/her child revoked unless the parent is shown
to be unfit.
A
guardianship may also be terminated if the guardian seeks to have
his/her appointment terminated, and all parties consent to that
termination. This must
be presented to the court for allowance. The guardianship terminates automatically when the
child attains his/her eighteenth birthday, or marries.
The
guardian may request the court order the parent, or parents, to pay
child support, provide health insurance, and to pay the uninsured
medical expenses of the minor child as long as the guardianship
remains in place. While
a guardianship of a minor ends on the ward's eighteenth birthday, if
that child continues to live with the former guardian, the
"custodial adult" may file a Complaint in Equity, to have
the parent continue paying child support and/or college expenses
after the guardianship has been terminated, if the child is not
emancipated.
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