How to Establish a Guardian for the Children When Both Biological Parents Are Divorced

By Michael Butler

Parents have a constitutional right to the "care, custody and control" of their children as stated by the United States Supreme Court in Troxel v. Granville. This right does not change after the parents are divorced. If both parents are unfit to raise their children, however, another person can petition a court for guardianship of the children. If the court finds it is in the best interests of a child, the court will grant guardianship to a non-parent.

Parents have a constitutional right to the "care, custody and control" of their children as stated by the United States Supreme Court in Troxel v. Granville. This right does not change after the parents are divorced. If both parents are unfit to raise their children, however, another person can petition a court for guardianship of the children. If the court finds it is in the best interests of a child, the court will grant guardianship to a non-parent.

Step 1

Consult with a licensed family law attorney in the children's home state. Because of the constitutional, emotional and psychological issues involved in giving a non-parent guardianship over a child, courts follow very specific procedural requirements. Every state has its own specific procedures and only an attorney in your state can tell you the ones to follow in your particular circumstances. Despite the specific differences, however, there are similar general procedures that courts follow in most states.

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Step 2

Get the consent of both parents, if possible. If the parents agree that neither one of them is capable of raising the children, the best solution is for them to consent to have another person act as a guardian. However, when the parents are divorced, they may not agree about who should be the guardian. Even though it makes it easier, you don't need parental consent to establish guardianship.

Step 3

File a petition for guardianship with the clerk of the court in the county where the children reside. Many states have forms that you can download and fill out.

Step 4

Follow the rules and procedures of the court regarding guardianship cases. Since every state has its own procedure, the exact process differs greatly. Common things that courts order are interviews with the proposed guardian, parents and children; home visits by social workers; appointment of a guardian ad litem to act as a representative for the child and his or her best interests; examination of the proposed guardian's finances; and psychological counseling when appropriate. The exact process required by the court often depends on the unique circumstances of the case.

Step 5

Establish that both parents are unfit to take care of the children. At some point, either at a hearing or trial, you will need to prove this to the court's satisfaction. "Unfit" is a legal term of art that basically means a child's parents are unwilling or incapable of meeting the child's basic needs. Because the parents are divorced, you need to prove that both of them are unfit. Common reasons to find a parent unfit include negligence, abuse, drug addiction and incarceration. Parents can also be declared unfit without being "bad" parents. For example, a parent on active military duty overseas may be currently incapable of caring for the child and thus unfit at the time.

Step 6

Establish it is in the best interests of the child to have the proposed guardian granted legal guardianship. This requires that the guardian is a fit person to raise the child. It also usually means the guardian must have a close, personal relationship with the child. This is the final item a court considers when deciding whether or not to grant a guardianship request.

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Can People With Legal Guardianship Take Children Out of State?

References

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Setting Up Guardianship in a Will

Probate courts appoint legal guardians to care for minor children if their parents die. A guardian ensures a child receives such things as housing, food, education and health care until he reaches the age of 18. Parents can nominate individuals to serve as guardians in their wills. Generally, judges follows parents' wishes by awarding guardianship to the parents' nominees. If a nominee is unable to serve, the court chooses another capable person to act. State laws regarding guardianship may vary.

Do Guardianship Papers Overrule Custody?

Differentiating between custody and guardianship can be complicated because they are essentially the same thing. One distinction is that family courts usually grant custody orders, and probate courts grant guardianship orders. Custody is often an arrangement between parents pursuant to a divorce decree, determining which of them their child lives with and who makes important decisions on the child’s behalf. Guardianship usually involves a more cohesive and precise order, legally placing a child in a guardian’s care.

Can a Legal Guardianship Expire?

A guardianship is a legal mechanism by which one individual or entity is appointed by a court to make decisions on behalf of another person. The person in need of guardianship may be a minor whose parents are unwilling or unable to provide proper care for the child, or an adult incapacitated by illness or age. Unless otherwise stipulated by the court, a legal guardianship can expire or terminate; when and how depends on the type of guardianship.

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