How to Get Legal Guardianship of a Child While a Parent Is in Jail

By Christine Funk, J.D.

How to Get Legal Guardianship of a Child While a Parent Is in Jail

By Christine Funk, J.D.

When a parent goes to jail or prison, their children still require care and supervision. Depending on the facts and circumstances of the case, everyone may agree that once the parent is out of custody, they should resume their parenting responsibilities; however, while they are in custody, someone must be legally able to make decisions for the children. Without legal guardianship, an adult caring for the child of someone in custody does not have the authority to make decisions about a child's ordinary life events, including school activities and health care. The process of obtaining guardianship can vary slightly by state. However, the basic steps remain the same.

Grandpa with laughing kid on lap

1. Contact the agency responsible for child welfare.

Whether you already care for the child or the child is in foster care or some other temporary home, make your wish to become the child's guardian known. Contact the agency responsible for caring for children in the child's state of residence. This may be the Department of Children and Family Services, the Child Protection Agency, or Child Protective Services. Regardless of the name, the function of this agency is to make certain children are safe and receive proper care. Let the agency know the parent is in custody and unable to care for the child. Provide them with your relationship to the child. You do not have to be a relative to obtain temporary custody of a child.

2. File a motion for temporary guardianship.

In the county where the child lives, file a motion for temporary guardianship. Because of the abundance of guardianship forms associated with divorce cases, a Web search for temporary guardianship assistance may be more effective by using the terms "relative and third party custody." Often, the Department of Children and Family Services can help you obtain the correct forms. If the child is already in foster care, the agency might even take on the tasks associated with transferring care from a foster family to you.

3. Cooperate with the investigation.

As you might imagine, the state is not willing to hand over child care responsibilities to just anyone. The county will look into you, your home, and your family. Sometimes referred to as a home study, the investigation the government carries out determines that your home is safe and clean, can provide appropriate discipline, and is consistent with the expectations the state has for anyone caring for children.

4. Attend the hearing.

In most states and in most cases, the court holds a hearing before granting temporary guardianship of a child. The formality of the hearing depends on the jurisdiction and the situation. For example, an unchallenged request for temporary guardianship by someone already in possession of a child might require a very short, informal hearing. On the other hand, in a case where multiple parties seek guardianship of the child or in which someone disputes the appropriateness of a placement, the hearing can be quite formal. It might involve testimony from interested parties, as well as professionals, such as a guardian ad litem. The court, in every case involving children, makes the decision with the best interest of the child in mind.

5. Notify those who need to know.

Once the court awards you guardianship, notify the relevant parties. This can include the child's teachers at school, daycare providers, and medical care providers.

If a relative or someone you know goes to prison and you're the person best situated and equipped to care for their children, you can take steps to receive guardianship. The process varies by state and by situation, but you must contact the appropriate agency, file for temporary guardianship, cooperate with an investigation of your home and circumstances, and attend a hearing. If you're the only person attempting to get guardianship, the process might be relatively smooth. Once the court awards custody to you, you must provide notice to anyone who interacts with the children.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.