Appointment of Guardians for Children under Georgia Law
Appointment of Guardians for Children under Georgia Law
The Georgia Code states the powers and the responsibilities of guardians:
The power of a guardian over the minor shall be the same as that of a parent over a child; the guardian standing in place of the parent. A guardian shall at all times act as a fiduciary in the minor's best interest and exercise reasonable care, diligence, and prudence. O.C.G.A. § 29-2-21
The responsibilities of the guardian include, but are not limited to O.C.G.A. § 29-2-21:
- Respect the rights and dignity of the minor;
- Arrange for the support, care, education, health, and welfare of the minor considering the minor's available resources;
- Take reasonable care of the minor's personal effects;
- Expend money of the minor that has been received by the guardian for the minor's current needs for support, care, education, health, and welfare;
- Conserve for the minor's future needs any excess money of the minor received by the guardian;
- If necessary, petition to have a conservator appointed.
Types of Guardians O.C.G.A. § 29-2-1
- Natural guardians (parents, or in case of divorce, parent with sole custody or both if joint legal custody O.C.G.A. § 29-2-3);
- Testamentary guardians (individual nominated by child's parents in a will O.C.G.A. § 29-2-4);
- Temporary guardians (see below);
- Standby guardians (nominated by parent or current guardian pending health issues O.C.G.A. § 29-2-10); and
- Permanent guardians (where child has no natural guardian, testamentary guardian, or permanent guardian O.C.G.A. § 29-2-14).
Temporary Guardians of Minors O.C.G.A. §§ 29-2-1 -29-2-8
1. What is a temporary guardian?
A temporary guardian is a person appointed by the probate court to take care of a child whose parents or other guardians have temporarily given up their parental rights
2. Who has the right to apply for a temporary guardianship?
Any person who already has physical custody of the child and is not himself (herself) a minor, ward or other protected person; or who does not have a conflict of interest with the minor, although the conflict may be overcome by a judge's determination of the child's best interests. A person CANNOT get temporary guardianship of child that is not already in his or her custody.
3. What probate court has the authority to appoint a temporary guardian?
The probate court of the county where the child and the petitioner reside has the authority. If the petitioner is only temporarily in the state, and has residence in another state, then the county where the child is currently living.
4. In order for the temporary guardianship to take place, must the parents or the guardians give up their parental rights?
The parents or guardians must temporarily give up or relinquish their parental rights. The notarized document that is used to do this must be part of the guardianship petition. If one or both parents do not give up their rights voluntarily, the parent not giving up his or her rights must be properly notified of the petition for temporary guardianship. If an address is unknown, you may be able to notify the parent by publication in a legal newspaper.
5. What if the parents or guardians object to surrendering their rights, even on a temporary basis?
If a parent objects to the guardianship, the court will automatically dismiss the guardianship unless the objecting parent does not have legal custody of the child (the parents were not married at the birth of the child, and the father has not legitimated; OR the parents are divorced and only one parent has custody of the child). If the objecting parent does not have legal custody, there will be a hearing on the matter. Additionally, the parents may approve of the guardianship, but object to the person applying for guardianship (for example, they want someone else to be the guardian). In this case, there will also be a hearing. The parents have a limited time to object to the court, depending on the method of notice.
6. Does the parent the parent or guardian always have the right to select the person to be the temporary guardian?
The parent does have the right to make the choice. However, for good cause, the judge of the probate court may choose someone else, although this does not happen often.
7. If the biological father or an unknown father does not consent to the guardianship, does he have to be notified?
Yes. If the address is known, he must be notified by personal service if he resides in Georgia, or by first-class mail if he resides outside the state. If the address is unknown, you can notify the father by publishing a legal advertisement in the court designated newspaper, a process known as publication.
8. Does the child have any say in this process?
The court will take into consideration the wish of the child. However, the court has the discretion to make the final decision.
9. How long does a temporary guardianship last?
The guardianship remains in effect until one of the following events occurs: the child reaches age 18, the child is adopted, the child is emancipated, the child dies, the temporary guardian dies, letters of guardianship are issued to a permanent or testamentary guardian, or a court order terminating the temporary guardianship is entered.
10. Can a parent dissolve the guardianship?
Yes. Once the parent applies to have the guardianship dissolved, notice is provided to the temporary guardian of the application to terminate the guardianship. If no objection is filed within ten days of notice, the judge will dissolve the temporary guardianship.
If an objection is filed, the probate judge will transfer the case to the juvenile court, which will give both sides notice and hold a hearing. The juvenile court will make the decision whether or not the guardianship remains in the best interest of the child.
11. Does the temporary guardianship release the parents from their obligation to support the child?
No, it does not release them. They still have to support the child financially.
12. Is there a faster way than going through the courts to get a guardianship? Can I just write something on a piece of paper? What if I sign and notarize the paper? No. There is now a statutory power of attorney that parents can give a grandparent, great-grandparent, step-grandparent, or step-great grandparent. OCGA 19-9-122 (2009). There must be a hardship for the parent such as loss of home, serious illness, or incarceration. The power of attorney allows the grandparent agent to enroll the child in school, provide for the child's medical care, and in other respects, provide for the child (food, lodging, recreation, travel, and others specified by the parents). There is a specific form which must be used to create the power of attorney. A hand-written agreement, even if notarized, will not be enough to create a power of attorney. Contact your local legal aid office for more information.
For more information please contact the Atlanta Legal Aid Society or Georgia Legal Services Program office nearest you.
For Clayton, Cobb, Dekalb, Fulton, and Gwinnett Counties, call Atlanta Legal Aid Society: 404-524-5811
For all other counties, call Georgia Legal Services Program: 1-800-498-9469 (toll free)
For Seniors age 60 and older, call the Georgia Senior Legal Hotline: 1-888-257-9519 (toll free)