There are two types of guardianships: guardianship of the person and guardianship of the estate. A guardian of the person is responsible for determining where the minor lives, seeing that the minor is properly fed, clothed, and sheltered, as well as supervising the minor’s conduct; seeing that the minor is enrolled in school and seeing that the minor has proper medical care. A guardian of the estate manage the minor’s money and property.
Appointment as a guardian requires filing a petition and court approval. Relatives, family friends or any other interested persons may be considered as potential guardians. Because a parent is his or her child’s natural guardian and custody must be taken from the parent to be given to someone else, most guardianships contested by the parents require the non-parent petitioner to show that detriment to the minor will result if the child remains in the parent’s custody. Detriment includes parental neglect, abandonment, abuse, or in some situations, moving the child from a current stable placement.
The primary focus in guardianship proceedings is on the child’s best interests, not on the adults’ "rights." If a guardianship is granted, visitation may be ordered in the minor’s best interest regardless of whether the adult seeking visitation is a relative of the minor. Generally, it must be proven that custody by the objecting parent(s) would be detrimental to the child before custody (guardianship) may be awarded to anyone else.
The Process: If there is reason to believe that a child needs a guardianship, the first step in the process to establish one is to fill out and file a petition and other required documents with the court. Local rules may require additional forms specific to your county. Any interested person or the child, if twelve years old or older, may file the petition. Specific persons, including close relatives to the child, must be given notice of the petition before a hearing can be set. The court may, at its discretion, excuse the need to notify some of those relatives given good cause. Once filed, the Court will order an investigation. The court appointed investigator will provide a report with a recommendation on what the court should do. If the petition is unopposed, it most likely will be granted. If there is opposition to the petition, such as by a parent or other interested person, the court will conduct a hearing. The court will then either grant the petition or may find that there are insufficient grounds to establish a guardianship.
Temporary Guardianships: In urgent situations, a temporary guardian may be appointed to serve until the final decision on a petition for appointment of a guardian. Because appointing a temporary guardian deprives the child of rights without a full hearing, its use is limited to emergency situations where good cause is shown. Temporary guardian appointments presume there is imminent danger that, pending the permanent appointment, the minor’s person or property will be injured or damaged. A temporary guardian’s powers terminate on the earlier of the temporary guardian’s receipt of notice of appointment and qualification of a guardian or 30 days after the temporary guardian’s appointment. In practice the court usually will extend a temporary appointment until the petition for "permanent" appointment has been granted or denied.
Multiple Guardians: The court may appoint two or more guardians for the minor. Each guardian must qualify and each has the same duties and powers as a sole guardian. Decision require unanimity. In other words, they must agree on all decisions affecting the minor’s well-being. If there are more than two guardians, a majority must agree to exercise a power over the child.
Termination / Removal: Guardians may be removed when the court finds that it is in the child’s best interest. It may be done on the court’s own motion or by a petition filed by the child, a relative or any other interested person. The court may appoint a successor guardian or return the child to a parent if that is found to be in the child’s best interest.
To conclude, before a guardianship is filed, there are many things to consider. Is it necessary? Have you considered all alternatives? Will the parents consent? If not, can you prove there is a need for a guardian? Is a temporary guardianship needed? Once these questions are answered, you can better determine if a guardianship is necessary and viable choice.
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