What should I know about guardianship for minor children?

Contents

• What are my rights if I become the guardian of a minor?
• What are the responsibilities of guardians of minors?
• What are the rights of the parents in guardianship?
• What are the responsibilities of parents during guardianship?

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What are my rights if I become the guardian of a minor?

The power of a guardian over the minor is the same as that of a parent over a child. The guardian stands in place of the parent. A guardian has the right to: 

• enroll the child in school, 

• obtain medical treatment for the child, 

• obtain housing for a child (though a guardianship is NOT required to include a child in your home or on your lease) and 

• otherwise make decisions for the child.

Are there special rules for temporary guardians?

Any person who already has physical custody of the child has the right to file for temporary guardianship with the probate court. However, a guardian cannot be a:

• minor,

• ward or other protected person; or

• 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 a child that is not already in their custody.

If you get temporary guardianship, you have the right to be notified if the parent tries to terminate the guardianship. You have the right to object to the termination. If you wish to resign as guardian, you have the right to petition the court to ask to resign. You can only quit if the court grants your petition.

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What are the responsibilities of guardians of minors?

In order to get guardianship of a minor, you are responsible for filing a petition with the court. You cannot get guardianship of a minor if you do not have a court order. A letter from a parent is not enough.

Guardians have responsibilities to the minors in their care, including:

• Respect the rights and dignity of the minor;

• Arrange for the support, care, education, health, and welfare of the minor;

• 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.

What are the additional responsibilities of a temporary guardian?

The responsibilities of a temporary guardian are the same as any other guardian. In addition, the Court will require annual reports from temporary guardians. The reports will cover the education, health and condition of the child.

A temporary guardian is responsible for the child until the guardianship ends. A 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.

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What are the rights of the parents in guardianship?

Parents have the right to give up their parental rights temporarily.

The parents or guardians who agree to guardianship temporarily give up or relinquish their parental rights. To do this, they sign a notarized document that is part of the guardianship petition. If one or both parents do not give up their rights voluntarily, they have the right to get official notice of the petition. If an address is unknown, you may be able to notify the parent by publication in a legal newspaper.

Parents have the right to object to guardianship.

If a parent objects to the guardianship, the court may:

• Automatically dismiss the guardianship,

• Hold a hearing to determine whether a guardianship should be ordered or continued,

• Hold a hearing to determine who should be the guardian.

Parents have the right to select 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. This does not happen often.

Parents have the right to dissolve the guardianship.

A parent can apply to have the guardianship dissolved. After, the temporary guardian is given notice of the application to terminate. 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. The court will give both sides notice and hold a hearing. The juvenile court will make the decision whether the guardianship is in the best interest of the child.

Parents do not have rights in permanent guardianship.

A permanent guardian cannot be appointed by a probate court if a child has a living parent, unless the parent’s rights have been terminated. When parental rights are terminated, the parents no longer have any legal rights or responsibilities to that child.

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What are the responsibilities of parents during guardianship?

Parents still have to support their children financially, even after guardianship is granted.  

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Contents

• How can I apply for guardianshp of a minor?
• What will the court consider when deciding who gets guardianship of a minor?
• How can I give someone else the right to care for my child without guardianship?

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How can I apply for guardianship of a minor?

To apply for temporary or permanent guardianship of a minor, you or any other interested person, must file a petition with the probate court. The petition must be filed in the county where the minor lives or where the proposed permanent guardian lives. The petition should include the following documents:

• A certified copy of the minor's birth certificate,

• A valid state issued Driver’s License or identification card,

• In the case of permanent guardianship, proof that the minor has no: 

  • natural guardian, 

  • testamentary guardian, or 

  • permanent guardian,

• A copy of any document made by a parent of the minor that deals with the guardianship of the minor. Also, include the name and address of any person named in the document to serve as a guardian of the minor.

If you are missing any of the documents needed to file for guardianship, like the child’s birth certificate, contact Legal Aid for help. 

At the time you file the petition, you must also pay filing fees. If you cannot afford the filing fees, you may petition the court to waive the fees. 

Proposed guardians must consent to a criminal background check and a guardian information form. 

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What will the court consider when deciding who gets guardianship of a minor?

The probate court must appoint a permanent guardian who will serve the best interest of the minor. The court looks for a guardian in this order:

1. The adult who is the preference of the minor, if the minor is 14 years of age or older;

2. The nearest adult relative of the minor;

3. Other adult relatives of the minor;

4. Other adults who are related to the minor by marriage;

5. An adult who was designated in writing by either of the minor's natural guardians; or

6. An adult who has provided care or support for the minor or with whom the minor has lived.

However, the court has the right to make a decision in the best interests of the child. The court may disregard an individual who has preference and appoint an individual who has a lower preference or no preference. In determining what is in the best interest of the minor, the court may take into account any facts and circumstances presented to it. This includes the statement of a minor who is under 14 years of age.

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How can I give someone else the right to care for my child without guardianship?

There is now a statutory power of attorney that parents can give a: 

• grandparent, 

• great-grandparent, 

• step-grandparent, or 

• step-great grandparent. 

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.

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