Guardianships

Guardianship is the legal way to provide rights to a person who is raising and is responsible for another person's child and the child is under the age of eighteen.

Guardianships arise in many type of situations. Guardianships are most commonly granted to grandparents and other relatives where the biological parents of a child are using illegal drugs or alcohol and are not able to take care of the child.  When parents are incarcerated they frequently leave the children with relatives who have no legal rights to provide for the child unless a guardianship is granted.

Guardianships are also appropriate where the parents are in the military service and not available to take care of the child. The parent will usually designate a guardian and sign a consent to the guardianship to allow a family member or other close family friend take care of the child.

Guardianships are to be temporary in nature with a person designated by the court to "stand in the shoes of the parent" until the parent can resume parenting responsibilities for the child. When the biological parent is able to resume parenting, the guardianship can be terminated.

In the case of drug or alcohol abuse, the biological parents may be given restricted visitation with the child with conditions imposed such as staying drug free, participating in treatment programs or going to therapy. Once the conditions have been satisfactorily met, the guardianship can be terminated.

Each relative to the second degree is entitled to be notified that a person is seeking a guardianship of a family member. Second degree means the biological parents, their parents and their siblings. Once notified, the other relatives have an opportunity to object to the guardianship or file for their own guardianship.

The legal test for granting a guardianship is whether it would be detrimental to the child to return the child to his or her biological parents. As long as there is evidence of detriment, the guardianship will remain intact.

Guardianships can also be granted where there is no showing of detriment to giving the child back to the biological parents, but the child has lived with a non-parent for a significant time and has provided a stable environment for the child. The legal test is changed in this circumstance and the court must evaluate what is in the child's best interests rather than just look at whether it would be detrimental to the child to be returned  to his or her parents.

The firm provides legal representation to do relative and non-relative guardianships. The court can grant a temporary guardianship upon a showing that harm will come to the child if removed from the proposed guardian.  Each guardianship proceeding requires a personal in home visit  by the guardianship investigator's office to the proposed guardians and an investigation into the background and fitness of the proposed guardian. The investigator then makes a recommendation to the court about whether the guardianship should be granted.

If the biological parents or others object to the recommendation of the investigator, the court will allow a full hearing with testimony to occur before the final decision is made.

 

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