Does the Mother or the Father Have Legal Guardianship of an Adult Child?

By Ciele Edwards

When a child turns 18, she is an adult under the law and any previous guardianship or custody orders cease because adults are generally able to provide their own care. But when an adult child suffers from a mental or physical illness or handicap that prevents her from being able to care for herself, she may remain with her parents under a guardianship order. An adult child's mother or father does not receive guardianship automatically. In most cases, the individual's parents must petition the court for legal guardianship of an adult child.

When a child turns 18, she is an adult under the law and any previous guardianship or custody orders cease because adults are generally able to provide their own care. But when an adult child suffers from a mental or physical illness or handicap that prevents her from being able to care for herself, she may remain with her parents under a guardianship order. An adult child's mother or father does not receive guardianship automatically. In most cases, the individual's parents must petition the court for legal guardianship of an adult child.

Obtaining Guardianship

Guardianship laws for adults are complex and vary from state to state but, in general, a guardian can be appointed in one of two ways: under a will or via a court order. A guardian is appointed in a will when the previous guardian names a new guardian in his will and the previous guardian dies. If the new guardian accepts the appointment, guardianship of the adult child passes to that person. Not all states recognize this method of assigning guardianship. Some states, like Illinois, recognize only court-appointed guardians. A parent attempting to obtain court-appointed guardianship of an adult child must file a guardianship petition with the court. A judge or jury will evaluate the adult child's disability to determine if a guardian is necessary and, if so, whether the petitioner is adequate for the job.

Divorce is never easy, but we can help. Learn More

Disagreements Over Guardianship

State laws vary, but when a divorced or separated parent files a guardianship petition with the court, she must often notify the adult child's other parent of the pending petition. If the other parent disagrees with his former spouse obtaining guardianship, he has the right to attend the hearing and raise an objection. In this case, the court may determine guardianship via a jury trial rather than a hearing.

Co-Guardians

The parents of an adult child who requires special care can appeal to the court to appoint them as co-guardians. In states that do not allow a guardian to appoint a subsequent guardian in a will, co-guardianship protects the child and ensures that she has a responsible guardian in place even if one of her guardians dies, needs to travel or is no longer capable of providing adequate care. Parents who accept co-guardianship of their adult child must agree on all decisions regarding the best interests of their child. For example, if a mother and father hold a co-guardianship and their adult child wants to apply for a job, they must agree on whether or not the child can work and, if so, what type of employment is appropriate.

Changing Guardianship

Guardianship assignments, like custody agreements, aren't always permanent. If one parent petitions for and receives guardianship of his adult child, the other parent has the right to petition the court to terminate or modify the arrangement at any time. Parents are not the only individuals capable of providing care for their adult child. The disabled individual's siblings can share guardianship responsibilities with parents or each other. A sibling also has the right to apply for and receive sole guardianship of the disabled individual.

Divorce is never easy, but we can help. Learn More
Legal Guardianship in Wisconsin

References

Related articles

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.

Laws on Obtaining Sole Guardianship

A legal guardian is someone charged with the responsibility of caring for a ward -- either a child or an incapacitated adult. He is normally vested with the same authority that a parent has over a child, including the authority to make important life decisions for the ward. A conservator, by contrast, is responsible only for managing a ward's financial affairs. A person granted physical custody provides for the ward's basic needs, such as food and shelter, but may lack the authority to make important life decisions for the ward.

The Rights & Responsibilities of a Temporary Guardian in Arkansas

A temporary guardian is a person appointed by the court to play the legal role of a child's parent, when parents are unable to do so. A court may appoint a temporary guardian when a parent is incarcerated, temporarily too ill to care for the child or after a parent dies. In Arkansas, guardians have many of the same rights and responsibilities of parents. The guardian must relinquish the child to the parent at the end of the term of guardianship if the order of guardianship orders her to do so.

Get Divorced Online

Related articles

When Does Legal Guardianship End?

A legal guardian is a person who is given authority over and legal responsibility for another person or her property by ...

What Do You Do if a Minor's Court-Appointed Guardian Dies?

A court-appointed guardian serves to protect the interests of a minor child who does not have a responsible parent, ...

Legal Guardianship in Arizona

In Arizona, as in other states, an adult may obtain legal guardianship over a minor or an incapacitated adult with ...

Legal Guardianship of an Abandoned Child

Working out the custody of a child can be a confusing and heartbreaking process, especially if parents are fighting ...

Browse by category