Guardianship for a child or minor is a legal process that gives an individual who is not the child's parent legal custody and control over the child. There are many reasons to provide for guardianship of a minor child, including where a parent may be unable to care for their child for a limited or extended time for financial reasons, or due to incapacity, medical reasons, or if a parent is incarcerated.
Legal guardianship of a minor transfers the legal rights of a child to another person, including legal custody. This suspends the parents' rights but does not terminate the parent-child relationship. To undo legal guardianship, a parent has to petition to terminate the legal guardianship, and transfer the legal custody of a child back to the parent. This may not occur automatically, as the court will determine whether terminating the guardianship is really in the best interest of the child.
The process may begin with the filing of a petition for appointment of a guardian of a minor. Any interested person may file a petition for appointment of a guardian. To be eligible, the minor child has to be under the age of 18, and the person petitioning for guardianship has to believe that the welfare and best interests of the minor child require the appointment of a guardian. Notice of the petition is sent to any living parent, anyone who had cared for or had custody of the child during the last 60 days, as well as the child if the child is 14 or older.
Permanent guardianship may take a couple of months from petition to the final orders. In the event that an emergency or temporary is more appropriate, an individual may file for temporary or emergency guardianship. Temporary guardianship usually applies if it is only necessary for six months. Emergency guardianship may occur without notice to the parents where a child will be harmed if the temporary guardianship is not granted.
Guardians of children are most often relatives or close family friends. An aunt, uncle, grandparent, godparent or even a sibling that is over the age of 18 may petition to be appointed the guardian of a child. If the guardian is unrelated to the child, they will have to be fingerprinted. The petitioner will represent their relationship to the child, and put forth the reasons why they are requesting guardianship, and how it will be in the child's best interest if they are appointed the guardian. A child who is 14 years or older may even nominate a potential guardian.
Anyone who objects to guardianship for a minor or disagrees with the petition for guardianship may file an “objection to petition.” They may then tell the court any reasons why they object to the petition for guardianship. The individual may then attend the court hearing and if the judge approves, explain why they disagree with the petition for guardianship.
If the court approves the petition for guardianship, they will appoint the guardian or co-guardians of the child. The court will appoint a guardian in consideration of what would be in the best interest of the minor.
When a parent only needs someone to look after their child temporarily, they may have other legal options other than a guardianship. In some cases, a power of attorney can give relatives a limited authority that can be easily revoked when the parent returns to care for their child.
In order for a parent to regain parental authority over their child, they will have to petition the court to rescind the legal guardianship. Similarly, if any other interested party does not believe that the child is properly cared for in their current guardianship, they may petition the court for guardianship. The court will review any requests to rescind or change guardianship, and make a decision based on the best interests of the child.
The guardian of a minor will be responsible for caring for the child, and making sure their needs are met. They will have to arrange for food, shelter, and clothing; arrange for the child's education, religious and social activities, and authorize medical care and treatment. They may also be responsible for caring for the child's personal property.
If the minor child receives money or benefits, the guardian may be responsible for these funds. This could include child support from parents, money from relatives, state or local public benefits, and any money from a trust account. After paying for the costs of the child's care, the guardian should set aside any excess money for the child's future needs. The guardian should maintain a separate account for the child's money, and maintain proper record keeping for how the funds are used. The court may also appoint a conservator to manage the child's funds and property.
The guardian is responsible for making regular annual reports to the state on the status of the child and the guardianship. On the anniversary of the date the guardianship began, the guardian should file their annual report, and continue to do so on that same date each year. The annual report should include a description of where the minor lives, not just the address. The report should also include:
At West, Elsberry, Longenbaugh and Zickerman, our family law attorneys are here to help individuals and their families throughout southern Arizona achieve their family care and future planning goals. We will work with you and ensure you have everything you need to provide guardianship for your minor child so that all of their needs are provided for. Our team of attorneys is committed to addressing the individual needs of each of our clients and can assist you with all aspects of guardianship planning.