Can the Biological Mother Change the Legal Guardianship of Her Child?

By Joe Stone

All states have laws providing for the appointment of a guardian to care for a minor child when the child's biological mother is unable to do so and the father is also unable or unavailable. The guardian is appointed by court order and is subject to court supervision. Although the mother may nominate a particular adult to act as guardian for her child, the court makes the final decision on who is appointed. Any change in the guardianship must also be done through the court.

Guardianship vs. Parental Rights

A mother or other concerned adult may petition the court for appointment of a guardian for her minor child; however, the establishment of a guardianship does not terminate the mother’s parental rights. In situations where she cannot care for her child, perhaps due to incarceration, drug addiction or other serious illness, a guardian assumes responsibility for providing the child's day-to-day needs, schooling and necessary medical care. The mother's parental rights remain intact and co-exist with the guardian's duty to care for the child. For example, the mother is entitled to reasonable contact with the child during the guardianship.

Guardian Power and Duties

State law specifies what powers the court may grant to the guardian over a minor child. For example, Section 524.5-313 of the Minnesota Statutes states that the guardian's powers include deciding where the child will reside; ensuring that the child's personal comfort and needs are met for food, shelter and clothing; consenting to medical service for the child; and deciding the type of education the child will receive. State law further requires that guardians make periodic filings with the court. In California, for example, the court mails a Guardianship Status Report annually to every guardian, and this form must be filled out and returned to the court. Additional filings may be necessary if the guardian is handling money received for the child's benefit, such as public assistance.

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Change of Guardian

A child's guardian can only be changed by court order. The child's biological mother may petition the court for a change; but the petition must affirm that the current guardian is not adequately caring for the child or has failed to comply with the court’s reporting requirements. For example, Minnesota law provides for appointment of a temporary, substitute guardian but only on a showing that the child's welfare requires immediate action that the guardian is failing to address. A California court may remove a guardian who fails to return the annual Guardianship Status Report.

Alternatives to Guardianship

In some situations, a mother may be able to choose an alternative to a formal guardianship that gives another adult the right to care for the child but also gives the mother the right to remove or change the caretaker as desired. California law permits the making of a Caregiver's Authorization Affidavit that gives another relative of the child or licensed foster parent the right to care for the minor without the need to go to court. The state provides a pre-printed form that contains the statutory language. Because guardianship laws vary by state, a mother desiring to use such an alternative must check the laws of the state in which she resides (see Resources).

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Legal Guardianship in Arizona



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Guardianship Laws for Adults

A guardian is a person or entity appointed by a court to care for a person who cannot meet his own needs, known as a ward. Although the powers and duties of guardians are similar to the powers and duties of parents with respect to minor children, a court cannot appoint a guardian for an adult unless he is subject to a disability that prevents him from effectively caring for himself. State law governs guardianships.

Legal Guardianship for an Incompetent Parent

A guardian is a party who undertakes legal responsibility and authority for the care of someone else, known as a ward. An adult can become a ward only if he is declared legally incompetent. If your parent is a victim of a disability that prevents him from meeting his basic needs, you may petition a court to appoint a guardian.

Guardianship Laws in California on How to Relocate a Minor to Another State

A California guardianship can involve the court appointing an adult to care for a minor child when the child's parents are deceased or unable to fulfill their parental obligations. Although the guardian generally carries out his duties to care for the minor as a parent would, California law requires the guardian to obtain court approval before taking certain action regarding the minor. Relocating to another state with the minor is one action that requires prior court approval.

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