How to Establish Guardianship of a Child FAQs

For anyone interested in learning how to establish guardianship of a child, there are numerous concerns that accompany such an important process. Read on for answers to common questions about establishing a guardianship of a child.

What is the procedure to 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.

How will the court decide?

In all matters involving children, courts use a "best interest of the child" standard to make decisions. 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's 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. Appointing a married couple often works well, but name both in your will to ensure that they have legal custody/power to make decisions for your child.

When choosing a legal guardian, consider that the guardian should have these factors:

  • Must be a legal adult
  • Physically able to fulfill the responsibilities
  • Ample time to care for your children
  • Must be able to afford to raise your children, via their own income or via assets you leave for the children's care)

Do I need to explain my choice of legal guardian for my children?

It's always a good idea to leave a letter of explanation for any judge that may question your choice of legal guardian. Because judges apply the best interest of the child standard, it's a good idea to explain why the guardian you chose is in your child's best interest. Judges consider the following:

  • The child's preference
  • Who can best fulfill the child's needs, stability, and continuous care
  • 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 don't 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

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.

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.

How burdensome are the responsibilities of a legal guardianship?

It is not an easy task; there are many responsibilities including financial obligations. 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.

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?
  • Do I want to act as the legal parent of this child for the entirety of the guardianship?
  • Will the parents support my guardianship, or be hostile?
  • How will the guardianship affect my own family, health, job, life?

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.

Discuss Your Concerns About How to Establish Guardianship of a Child with an Attorney

You want to apply for guardianship. You know you can handle the task and are willing to do whatever it takes to make that dream a reality. But guardianship laws can be confusing and you want to do everything right the first time. A great first step is to contact an experienced family law attorney who can help you map out a future game plan. Get started today and find a family law attorney near you.

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