Legal guardianship is a big responsibility. The guardian’s role is to provide for a child and make legal decisions on their behalf in place of a parent.
In some circumstances, termination of this legal relationship may seem best for the child and/or the guardian. However, depending on the type of guardianship, the state law and the circumstances, ending this legal arrangement may be difficult.
This article will help you better understand what guardianship is and how both temporary and permanent guardianship might be terminated. Keep in mind, the laws differ from state to state, so this is only a general guideline. To learn the exact laws applicable to your situation, talk to an experienced lawyer.
What is legal guardianship?
Legal guardianship allows a caregiver to make legal decisions for another person to provide for their wellbeing. For example, the guardian may decide where a child goes to school and sign off on medical care. They may also be responsible for providing food, shelter and education.
You can obtain legal guardianship over a child under 18 or over an adult who can’t fully care for themselves. For the purposes of this article, we focus on guardianship of children.
The main types of guardianships are temporary guardianships and permanent guardianships.
As the name suggests, a temporary guardianship typically lasts for a set period of time, often a few months. The court order specifies when or how the arrangement terminates.
Temporary guardianship might be necessary in urgent situations. For example, if the child’s permanent guardian passes away or there’s an emergency in the home that requires the children to live elsewhere for some time.
There are different types of temporary guardianships. Some require the parties to go to court and obtain an order from a judge. Others require a formal agreement between the parties but not necessarily a court order.
A permanent guardianship or plenary guardianship of a child lasts until the minor reaches the age of majority (when they’re considered an adult) in their jurisdiction. This may be appropriate if someone needs to assume the rights and responsibilities ordinarily occupied by a parent for a long time. For example, if the biological parent can’t care for their child due to a serious illness or incarceration, a permanent guardianship may help ensure someone can provide for the child.
How hard is it to terminate guardianship?
The difficulty in terminating a guardianship depends on the type of guardianship, the applicable law and the surrounding circumstances.
How do you terminate temporary guardianship?
In many situations, temporary guardianship may automatically terminate after a certain amount of time, when a specific event (such as a parent returning home from hospitalization) occurs or when the court appoints a permanent guardian.
Sometimes a party may petition the court to end a temporary guardianship early if they can show that doing so is in the best interests of the child. Examples where this may apply could include:
- The current guardian is neglecting or abusing the child.
- The temporary guardian has a change in circumstances (such as a loss of a job) and can’t provide for the child.
- The parents are able to care for the child again.
If the guardian and the parents (or the State, if the child is in state custody) agree, they may be able to sign an agreement to end a temporary guardianship early.
If the guardian doesn’t agree, the person seeking to terminate temporary guardianship may petition the court and explain why they believe the guardianship should end early. The court will hold a hearing to determine if termination is appropriate and, if necessary, appoint a new temporary guardian.
How do you terminate permanent guardianship?
Permanent guardianships may be more difficult to overturn. Some states allow anyone to petition the court to terminate or change legal guardianship, while other states restrict this right to interested parties. The guardian may also request that the court terminate the guardianship if they’re unable or unwilling to serve in that role any longer.
The steps for terminating a permanent guardianship are typically similar to those for terminating a temporary guardianship. However the court generally must approve the termination, even if everyone agrees.
What the party must prove in court to successfully terminate the guardianship varies from case to case based on the state’s rules and the situation. For example, the person seeking to end the guardianship may need to show that the parent is now fit to serve as the child’s caregiver or that the current guardian can’t care for the child.
In most cases, the court makes its decision about terminating permanent guardianship based on the best interests of the child. The court typically looks at various pieces of the child’s life, such as their social life, education, recreational activities, home life and preferences.
If it seems like the child is thriving with the current guardian, the court is usually less likely to terminate the arrangement. Courts generally prefer to disrupt the child’s life as little as possible and only when necessary.
Who can terminate a guardianship?
Each state has different rules about who can ask to end a guardianship. In most instances, the guardian may voluntarily ask to terminate the guardianship if they believe they can’t care for the child. Or an interested party—such as a family member or the birth parent—can typically petition the court to end the guardianship.
If the person asks to end the guardianship early, they usually must show a substantial change in circumstances. For example, they might explain that the guardian can’t afford to care for the child or no longer has housing.
When to speak with an attorney
Terminating guardianship isn’t a decision to take lightly. You need to follow the law and also keep the child’s best interests in mind.
Every case is unique, so if you wish to try to terminate guardianship, you likely want to talk to an experienced lawyer. Once they know the details of your situation, they can discuss your options and help you with the process so the child can have a fulfilling, stable upbringing.