Can Someone Take Guardianship if I Have Sole Legal Custody?

by Robin Elizabeth Margolis

    If you have sole legal custody of your child, but you develop personal problems that create an unsafe home for him or you repeatedly violate the other parent's visitation rights, your child may be turned over to a permanent or temporary legal guardian.

    Custody Loss Reasons

    You can lose sole legal custody of your child for a wide variety of reasons, including abuse, abandonment or neglect. A court may also view you as an unfit parent if you develop untreated substance abuse problems or mental illness, engage in criminal conduct or consistently obstruct the other parent's visitation rights. A court will most likely transfer sole custody of your child to his other parent if the court decides that you are currently unable or unwilling to appropriately care for your child. However, if your child's other parent is also unable or unwilling to accept custody or is deceased, a court can give legal guardianship of your child to other family members or to an unrelated person. A legal guardian takes over your responsibilities for clothing, feeding, housing and schooling your child. A legal guardianship can be temporary or permanent.

    Guardianship Types

    A relative or unrelated person may request temporary guardianship of your child if you are experiencing instability due to situations such as substance abuse or mental illness. Ideally, the temporary guardianship arrangement would be based on the understanding that if you successfully complete a substance abuse recovery program or a treatment program for mental illness, custody of your child will be returned to you. Temporary guardianships usually last for periods of a few months to a year. Permanent legal guardianship is often sought in instances where there has been severe abuse, abandonment or neglect of your child and the court finds that your child cannot be safely returned to you. A permanent legal guardian will have custody and control of your child until he is 18 years old.

    Guardianship Proceeding

    Every state has its own complex laws governing the transfer of a minor child from parental custody to a legal guardian. Typically, a guardianship proceeding involves a relative of the minor or an unrelated person petitioning a court to be appointed temporary or permanent guardian of the child. The person who seeks to become your child's guardian will send you a legal notice by certified mail, alerting you that court guardianship proceedings have started.

    Granting Guardianship

    The court may order an investigation of you and your child by a state child welfare organization. The court will then hold a hearing on the guardianship petition. The person who wishes to become your child's legal guardian, you, possibly your child and your child's other parent, and other interested persons typically attend the hearing. You will have to explain why you think you should retain custody of your child. If a court finds that your child cannot be safely left in your care, a petition for temporary or permanent legal guardianship may be granted.

    About the Author

    Robin Elizabeth Margolis is a freelance writer in the Washington, D.C., area. She has been writing about health care, science, nutrition, fitness and law since 1988, and served as the editor of a health law newsletter. Margolis holds a bachelor of arts degree in biology, a master's degree in counseling and a paralegal certificate.

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