All About Legal Guardianship
Legal guardianship is the process of providing state-approved and legally recognized guardianship for a child or adult, and is an alternative to biological or adoptive parenting. A legal guardian enjoys all of the same rights and responsibilities as a parent, but without the compatibility prerequisite and is recognized as a member of the family unit. Legal guardianship is a more hands-off version of foster care , where long-term custody is passed to the permanent guardian, so that the guardian can make all significant life decisions on behalf of the person in question. While terminating parental rights is the most solid way for them to relinquish control to a new caregiver or guardian, there are alternatives for families where adoption lacks both the proof and physical component.
Why Appoint a Step-Parent as a Legal Guardian
There is a variety of reasons why you may be considering designating your step-parent, or the step-parent of your child(ren), as their legal guardian. This section will address some of the most common scenarios and reasons.
Common Scenarios
In the first scenario, you are the biological parent of the minor child and have sole custody of that child. You are married to the minor child’s step-parent and have no objection to having the step-parent designated as an alternate guardian. In fact, you would prefer that the step-parent gain guardianship if you are no longer involved in the child’s life.
In the second scenario, you are the biological parent and the minor child’s other biological parent has them in their primary care and control. You are the non-custodial parent and share legal decision making authority even though you do not have primary care and control over the child. You want to designate the minor child’s step-parent as an alternate guardian, again with the mind-set that it is better for the child(ren) to remain living in the family home with the step-parent than moving the child(ren) on to another family member who has not had regular contact with the child(ren).
The third scenario is generally found in a third-party situation; however, the issue applies to divorced families as well. You are a biological grandparent or other relative to the minor child and you have been acting as a de facto guardian for at least six months prior to the parent’s decision to designate a step-parent as a legal guardian. Upon a parent’s death or incapacity, the step-parent has the right to seek guardianship. However, as a grandparent or relative, you have standing to contest the designation of the alternate guardian of the child. Or, fathers are required to take affirmative steps to establish paternity, which include obtaining court orders to establish parenting time and child support. A father that does not take these steps is less likely to be granted guardianship once his ex-wife passes away.
Common Reasons
Safety and Stability
All decisions made regarding children must be made in the best interest of the child(ren). In the divorce context, you are determining what is in the child’s best interest when asked to determine where the child(ren) will live, what school they will attend, how they will get medical care, and who will make daily decisions.
From a death or incapacity standpoint, a legal guardian is someone that can step into those parents’ shoes virtually immediately. They are not required to go through court hearings to determine what is in the best interest of the child. They can move forward without having to wait.
Parental Responsibility
This is the ability to exercise care, custody, and control over the child(ren) by the legal guardian. In contrast to visitation or parenting time, the legal guardian has the ability to make decisions on behalf of the child(ren) and represents them legally in all actions that impact their lives.
Legal Decision Making
A guardian can make any legal decisions that impact the minor child(ren). The decision can be as varied as allowing the minor child(ren) to decide what school they want to attend, where they live (which parent), and what doctor an emergency room should call when the child(ren) are admitted for an emergency.
With regard to a biological parent, the parent would be required to relinquish their legal decision making authority to a guardian, which would make decisions on behalf of them regarding the children.
Authority to Act Without Permission
A natural parent is required to give permission for the other parent to schedule medical appointments, change schools, or enhance extra-curricular activities. These consent areas can become points of contention because they do not require a court order. A guardian does not need permission to make these decisions.
Legalities: Step-Parent Legal Guardianship
For a step-parent to become a legal guardian, they usually must either have the consent of the biological parents or apply to the court for a termination of parental rights of one or both biological parents and be awarded guardianship over the child. In the vast majority of states, the standard for appraising the fitness of a potential guardian is the best interests of the child while weighing the rights of the biological parents.
In the event that the biological parent’s rights are terminated or relinquished by another mechanism, the step-parent may petition for guardianship in lieu of full adoption. Simply obtaining a judgment of guardianship may not be sufficient to establish a step-parent considering whether or not to adopt: the federal Social Security Administration has a list of certain circumstances in which they recognize guardianship for purposes of some benefits, but most state laws for guardianship differ from theirs.
Obtaining or agreeing to guardianship generally, but not always, terminates a parent’s rights and obligations to the child, such as the duty to support the child or to make health care decisions for the child. This varies between jurisdictions and sometimes turns on whether the guardianship remains in effect for a certain period of time or until the child reaches a certain age.
The step-parent must take additional steps like obtaining permission from the other biological parent, or in some jurisdictions, the court, to adopt the child if the step-parent wants to adopt the child and make the same legal claims as a biological parent. However, step-parent adoption provides the most security for a child, as well as the important status of full legal parentage to the step-parent.
The Process: Steps to Follow
Once you’ve established that legal guardianship is a beneficial option for you and your step-children, you need to take the necessary steps to file for legal guardianship through the appropriate court in your county.
1. File a Petition
All petitions for legal guardianship are filed through district courts, with the petition being made either voluntarily by the step-parent or, in some cases, involuntarily on the part of the state.
First, check your state’s rules regarding the exact petition. You may be denied guardianship if you fail to file the correct petition for your situation. An experienced family law attorney can answer any questions you have about which petition to file.
2. File a Notice of Hearing and Pick a Hearing Date
It’s best to choose a date that allows enough time to give at least 20 days’ notice to the biological parents of the children. A guardian ad litem (GAL) will also help give the children a say in what happens during the hearing.
3. Have the Biological Parents Give Their Permission , if Possible
If the biological parents are in agreement about the guardianship, they must agree to it, too. You may have to deal with an unwilling parent if the children’s biological parents are deceased, otherwise unavailable or unwilling to grant permission.
4. Schedule a Court Hearing and Complete Required Paperwork
At the hearing, the judge will take care of all relevant paperwork and schedules, such as visitation rights, child support payments and health insurance arrangements. The judge may or may not appoint a GAL as well. If you’ve filed a voluntary petition for guardianship, the hearing will usually only continue for approximately 30 minutes.
Pitfalls to Look Out For
While the step-parent seeking guardianship always has the child’s best interest in mind, family relations can make the guardianship process more difficult. For example, if there are financial resources to support the child, the other biological parent may be reluctant to allow a step-parent to have guardianship. If the family can work together, the children are the best served. However, animosity demonstrated in a family, can contribute to an unsuccessful guardianship, whether or not the step-parent is awarded guardianship over the child. A step-parent should seek to separate themselves from the family dynamics that got the biological parent into trouble in the first place.
If the child reaches the age of majority (i.e. their 18th birthday is the easiest reference point), they are no longer legally dependent on the guardian; therefore, the guardianship is considered "dismissed" by the court without further action. An individual in a guardianship over another person has the ability to control all aspects of life for the protected person, including finances. However, once the protected person is no longer in need of assistance, the former guardian should not maintain that control. Again, a guardianship is reviewed by the court every year at minimum, so it is understandable the court cannot keep a watchful eye over all guardianships as the protected person reaches adulthood.
The Court’s general standard for determining legal guardians is "best interest of the child." The court assumes the parent is already serving in the best interest of the child. Therefore, to change who has legal authority over a child, the requesting party must prove the biological parent (the entitled guardian) would no longer be in the child’s best interest. This is sometimes accomplished through the appointment of a Child Advocate, who represents the child in the best light. Sometimes, the biological parent recognizes a need for a guardianship and consents. Often there are other siblings that would be best suited to take care of a child. Finally, sometimes the court recognizes a potential family dynamic that is just not approved of legally, and chooses to appoint the step-parent to serve as guardian. Sometimes no one can agree, so the court is left with making the decision. It is not uncommon for a court to appoint a step-parent simply because that is what the child wants and the parent will not step up. Ultimately, when the court makes the appointment, the reasoning goes without telling. The court is simply required to state that the best interest standard has been met and therefore, the court appoints the step-parent as legal guardian.
Legal Aid and Resources
The legalities involved in becoming a step-parent or guardian of a child can be complicated, particularly if the biological parents are still alive and have not consented to the adoption. In most cases, it is highly suggested that you reach out to a family lawyer for a consultation to determine how you should proceed with filing the proper paperwork with the courts . Some states may require you to go through an agency before petitioning the court for guardianship. Others may have slightly different filing procedures.
You can also contact family-oriented non-profits and organizations that specialize in guardianship matters in your state. They will likely have a committee of experienced professionals who can answer any questions that you may have and make necessary suggestions for assistance.
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