Guardian Instructions for Minor Guardianship

By David Carnes

Parents are considered the natural guardians of their biological or adopted children. If the parents are unable or unwilling to care for their child, however, the state may appoint a guardian if no suitable alternative for the care of the child exists. Although state laws vary, all states require guardians to be appointed by court order.

The Petition

You initiate guardianship proceedings by filing a guardianship petition with a state court. Some states require you to file the petition with a district court, while other states require you to file it with a family court or probate court. Many states also require you to prepare an affidavit stating your relationship with the child and other required information. You must also prepare a summons and have the petition and summons served on the child's parents if they are alive and can be located. If the parents are not alive or you cannot locate them, you must serve anyone who has been given custody of the child. The state may also require that you serve the state child services agency as well.

Guardian Qualifications

Although many states allow any qualified person to petition a court to appoint him guardian of a minor, courts generally prefer relatives, a social services agency or a person named in the parents' wills. In any case, the basic legal standard is the "best interests of the child." More specifically, to be appointed guardian you must show that you are financially and physically capable of caring for the child and that you are of good moral character. You may have to submit your criminal history or credit record to the court and undergo an investigation of your fitness for the position.

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If the parents oppose the guardianship, they may call witnesses and present evidence unless their parental rights have already been terminated. If their parental rights have not been terminated, they may retain certain rights such as custody or visitation even after you are appointed guardian. Besides the parents, the child's other family members do have rights to object to your pursuit of guardianship. Although you do not need consent from other relatives if they are just interested parties, their objections could be detrimental to your pursuit of guardianship. If this happens, be sure to consult an attorney right away.

Powers and Duties

Although guardians are subject to powers and duties that roughly correspond to the relationship between a custodial parent and a child, a court has broad authority to tailor the authority of a guardian to the child's individual needs. Many states recognize two types of guardianships: guardianship of the estate and guardianship of the person. A guardian of the estate manages the child's finances, while a guardian of the person makes personal decisions such as where the child will live and where he will go to school. One party may be appointed to both types of guardianship simultaneously. You may be entitled to seek child support payments from the child's parents if their parental rights have not been terminated. Guardians can face criminal liability for neglecting their duties.

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Difference in Guardianship and Custodian

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