When children are removed from their families, state and federal laws require they be placed in the least-restrictive, most family-like setting. Guardianship is one option, and it comes with a lot of responsibility.
This article will help you better understand what guardianship of a child entails, how it differs from custody and adoption, and its pros and cons. We’ll also discuss how to become a child’s guardian.
What is guardianship of a child?
Although the definition and terms of guardianship vary by state, fundamentally, the purpose of a guardian is to provide care and protection and make education and routine healthcare decisions on behalf of the child under their care.
Guardianship is often appropriate in the following situations:
- The child’s parents are deceased.
- The child is living in an unsafe or abusive environment.
- The child’s parents don’t want to care for them.
- The child’s parents can’t care for them.
Guardianship might also be suitable when all of the following apply:
- The child has lived with the prospective guardian for a period of time.
- The child doesn’t want to be adopted or parental rights can’t be terminated.
- The child is benefiting from their relationship with their biological family.
- The prospective guardian is able and willing to provide a permanent home for the child.
Guardians’ rights and responsibilities
- Establishing a safe and stable living environment
- Providing adequate food, clothing and education
- Providing routine medical, dental and mental health care
- Authority to consent to school enrollment
- Ability to consent to health and mental health services
- Power to make decisions on behalf of the child
Some states may allow guardians to consent on behalf of the child for other major life events, like marriage, enlistment in the armed forces and major medical treatment.
What are the two types of guardianship?
The primary types of guardianships are temporary and permanent. Although the exact terms vary between states, generally, the difference is the length of time the guardianship lasts.
Temporary guardianship over a child
Depending on the state, temporary guardianship allows for the brief assumption of control by another person over the care and support of a minor child. Temporary guardianship may occur in emergencies where a child is experiencing an immediate risk to their health or safety. Temporary custody might also happen in the following cases:
- The child’s parents are traveling away from home for a significant period of time.
- The child’s parents are suffering from a short-term disability or medical condition.
- A guardian is needed for a short time until a permanent guardian is appointed.
In many cases, the court may impose a time frame or condition during which the guardianship is in effect. Typically, a temporary guardianship may last no longer than six months.
Permanent guardianship over a minor child
Legal guardianship is a permanent arrangement that typically continues until the child reaches majority (the legal age of adulthood) or the guardianship needs to be terminated. For example, guardianship ends if the child or guardian dies or a judge determines that the guardianship is no longer in the child’s best interest.
Guardianship vs. custody
Guardianship and custody both describe a legal relationship between an adult and a child. While the exact definitions vary between states, these terms typically have critical differences about the following:
- Who can take on the role: Custody refers to situations involving a parent’s care of their child, whereas guardianship involves someone other than the child’s biological parent. In some cases, a child might be under the guardianship of one person while in the custody of a biological parent.
- Who can grant the role: Only a court may grant custody over a child. On the other hand, while courts must approve guardianship, the child’s biological parent might be able to appoint a guardian.
- How long it lasts: Custody is often more flexible than guardianship, and modifications may occur if there’s a substantial change of circumstances. Guardianship tends to last until the child reaches majority and—at least in the case of permanent guardianship—may be much harder to modify.
Guardianship vs. adoption
Both guardianship and adoption provide a stable living environment for a child. However, there are two main differences:
- Parental rights: Legal guardianship doesn’t terminate parental rights. Adoption, on the other hand, may only occur if the parents’ rights are legally terminated.
- How long it lasts: Adoption is a permanent decision that legally binds the child to the adoptive parents. But some guardianship arrangements are temporary.
Benefits of guardianship
There are many benefits to guardianship, including:
- Connection to family members and kin: Guardianship provides children the stability of a permanent home while maintaining community, cultural and emotional ties to their biological family.
- Mental health: Some anecdotal findings suggest that guardianship improves the overall well-being of children by reducing the stigma associated with foster care.
- Maintaining control: Guardianship often reduces the need for formal intervention, such as the involvement of child protective services or similar organizations.
Disadvantages to guardianship
Guardianship also has downsides, such as:
- Uncertainty: In some cases, the time commitment is unknown.
- Responsibility: Guardians are legally obligated to provide care and support for the child in their care. This may be a huge undertaking.
How to become a guardian
The steps to establish guardianship depend on the jurisdiction within which the child resides. However, the prospective guardian generally must file a petition with the court that has jurisdiction over the child’s case. A court investigator may then interview the prospective guardian. In some situations, the investigator might interview the child.
Once the court receives and reviews the petition, the court schedules a hearing with a judge. At the hearing, the judge determines whether to grant guardianship. The most critical factor is whether the guardianship is in the child’s best interest. Other things that go into this determination may include:
- Results of the prospective guardian’s home study
- Criminal background and child abuse checks of the prospective guardian
- The child’s willingness and desire to reside with the potential guardian
- The prospective guardian’s understanding of the permanent nature of guardianship
How many guardians can a child have?
Co-guardianships occur when a child has more than one guardian. While, in theory, a parent may name as many guardians as they want, this may lead to conflict and instability for the child. In the context of legal guardianships, courts generally permit one or two guardians.
When to speak with an attorney
Granting someone guardianship of your child or taking on the responsibility is a huge decision. You want what’s best for the child. Talking with a lawyer may help. They can answer all your questions so you fully understand what guardianship means and entails. A guardianship lawyer may also help you prepare for the process of becoming a guardian so everything goes as smoothly as possible.