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How to Establish Guardianship of a Child FAQs

How do you establish guardianship of a child?

You can establish guardianship of a child by filing papers in court. Initially, file a petition stating your interest in obtaining guardianship along with a filing fee. You'll also want to file a letter of consent from the child's parents.

Once you've filed your petition, the court will set up interviews with you and possibly the child, the child's parents (if they are available), and anyone else who may have an interest. In some cases, the court may order a home visit or inspection, and a criminal background check of the would-be guardian is usually conducted.

In all matters involving children, courts use a "best interest of the child" standard to make decisions. So, if after reviewing the facts presented, the court finds it is in the best interest of the child, the court will grant you legal guardianship of the child. Most states require you to sign an oath stating that you accept the responsibilities of the guardianship. Once the judge has approved your guardianship petition, she or he will give you an order to establish guardianship. Be sure to check your local government's website for instructions; some even have forms you can download, fill out, and file with the court.

 Can I appoint a legal guardian for my own children?

Yes, and doing so is good planning. In case of the unfortunate event that you become unable to raise your children, you should establish a guardianship for your children with someone you trust. The best way to do this is to spell it out in your will.

Choose someone you trust and add a clause to your will that you want that person to raise your children if you ever become incapacitated. In your will, name one person as guardian and one person as an alternate (in case the first one cannot fulfill the position) for EACH of your children. It is perfectly legal to choose a different guardian for each child. You can even create more than one guardian for one child, though this has the potential to create problems should the co-guardians ever disagree. Usually, if the guardians are a married couple, this situation works out great. Just be sure to name them both in your will so that they both have legal custody and power to make decisions for your child.

When choosing a legal guardian, consider these factors:

  • The guardian must be of legal adult age in your state (usually 18)
  • Be sure that the legal guardian has a genuine interest in your children's welfare
  • The legal guardian must physically be able to fulfill the responsibilities
  • The legal guardian must have enough time to care for your children
  • How will the other children/lack of children of the legal guardian affect your children?
  • The guardian must be able to afford to raise your children, either through his or her own income or through assets you leave for the care of your children
  • The guardian should have similar morals to yours or those you would feel comfortable being instilled in your children

Do I need to give an explanation of my choice of legal guardian for my children?

It is always a good idea to leave a letter of explanation for any judge that may question your choice of legal guardian. As mentioned, judges will apply the best interest of the child standard, so it is a good idea to list in your letter why the guardian you chose is in your child's best interest. Listed are common issues judges consider:

  • the child's preference
  • who can provide the best stability and continuous care
  • who can best fulfill the child's needs
  • the relationship between the child and potential legal guardian
  • the moral character, fitness, and conduct of the potential guardian

What if the parents of the child do not consent? Can I still establish guardianship of the child?

Generally, guardianship is only granted if

  • the parents consent (both parents, unless only one is available)
  • the parents have abandoned the child or have had their parental rights terminated, or
  • a judge finds it would be in the best interest of the child to remove the child from the parents' custody

Sometimes, certain situations will arise that allow you to obtain legal guardianship of the child despite the parents' objections. In most cases, this involves proving the parents are unfit. If you find yourself in this situation, consult an attorney for help.

Besides the parents, the child's other family members do have rights to be notified and to object to your pursuit of guardianship. Although you do not need consent from all of these relatives, their objections could be detrimental to your pursuit of guardianship of the child. If this happens, be sure to consult an attorney right away.

 If I am the legal guardian, am I financially responsible for the child?

It depends. If the biological parents are still living and still have rights to the child, such as physical child custody or visitation, then they are financially responsible for the child. If their rights have been terminated, then they owe nothing towards the child's care. If you establish guardianship you can seek financial assistance, usually in the form of social security. If necessary, you can petition the court to set up a support schedule. All of the money from this support must go towards the child care, and many courts require periodic financial reports reflecting how much money was received and how it was spent. In the case where you receive guardianship via a will, many times the deceased parent will have left funds to be used for the child's care. Usually, there is a third party, like a lawyer, that monitors the spending of this fund.

 How burdensome are the responsibilities of a legal guardianship?

It is not an easy task. In most cases, you are taking on all of the responsibilities of a parent. Before taking on the role, consider the following questions:

  • Do I want the continuous responsibilities of a legal guardianship?
  • Am I ready to accept full liability for the child's actions?
  • Am I willing and able to manage the child's finances and provide records to the court?
  • Am I willing to go through the court proceedings necessary to obtain permission to handle certain financial issues?
  • Do I have the right kind of relationship with this child?
  • Do I want to act as the legal parent of this child for the entirety of the guardianship?
  • What is my relationship with the child's parents like?
  • Will the parents support my guardianship, or be hostile?
  • How will the guardianship affect my own family, health, job, life?
  • Do I have the energy to raise a child?
  • Do I have the time?
  • What is my financial situation? If the child's care is funded through social security, government assistance, the parents, or assets from a deceased parent, are those funds enough?
  • Am I willing to spend my own money on the care of this child?
  • Are there any foreseeable problems with the child's relatives suddenly appearing to object and contest the guardianship?

Becoming legal guardian of a child is a huge responsibility with a lot to consider. Think carefully about the questions above and plan accordingly. It's always a good idea to consult a lawyer if you have any questions or need help.

Visit FindLaw's Guardianship Overview section for additional articles and resources. 

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