In the last 50 years, the number of U.S. children who don’t live with their parents has risen by nearly 1 million. Some estimate that about 7.7 million children in the country reside in a relative’s home.
This trend highlights the importance of understanding the role of guardians and when guardianship may be best for a child. This article addresses common questions about this topic, including what guardianship is, reasons for it, how to establish guardianship and alternative custody options.
What is guardianship?
While exact definitions vary between states, guardianship over a child generally refers to the legal relationship between a minor child and a guardian. Guardians are granted care and control of a child and are responsible for the child’s needs. Typically, this includes providing a safe home, food, clothing and health care. Additionally, guardians have the right to make certain decisions on behalf of the child, including routine medical care and school enrollment.
Guardianship vs adoption
Guardianship and adoption both aim to provide children and youth with stable, supportive environments. Both arrangements give the caregiver all the parental responsibilities involved in raising a child.
The key distinction between guardianship and adoption is that adoption is a final arrangement that first requires termination of the parents’ rights. On the other hand, guardianships are temporary until one or both parents can adequately provide the stability, safety and care for the child, or until the child reaches the age to be considered an adult.
Common reasons for guardianship over a child
At its core, guardianship is designed to promote the preservation of family, community and cultural ties for the child. It typically arises when a relative or close family friend wishes to step in to provide the stability, care and protection for the child when the child’s parents are unfit or can’t adequately provide this care.
Guardianship over a child might be appropriate in situations such as the following:
- The child’s parents are deceased
- The child’s living environment is unsafe because of drug or alcohol misuse
- The child’s parents don’t or can’t care for the child
- The child’s in an abusive situation
Occasionally, parents may need to establish guardianship over a child’s estate. This typically occurs if the child receives a significant financial gift.
Additionally, parents of children with cognitive disabilities might consider guardianship if they have concerns over their child’s ability to care for themselves after the parents die.
Types of guardianship of a child
There are several types of guardianship in the United States that provide varying levels of support and resources to caregivers and their children.
In addition to care of a child, legal guardians typically receive the authority to make decisions concerning things such as that child’s protection, education, care, discipline and health. Legal guardianship is what people are often referring to when talking about guardianship of a child.
Temporary guardianship typically involves an agreement between a parent and a person the parent would like to care for their child in the event they can no longer do so. Temporary guardianships generally don’t require court approval, however a petition may ask the court for a temporary order in emergency situations. These arrangements may be good to fill the gap between parental incapacitation and a more longer-term solution.
Also referred to as guardianship of a minor’s person, this refers to an individual who has the power to make important life choices on behalf of a minor. However, a guardian of a minor’s person usually doesn’t have the ability to make all decisions on behalf of a minor, such as financial decisions. (The guardianship order will specify the scope of the guardian’s responsibilities.)
Estate guardianship is used by some states to refer to a situation where someone makes financial decisions on behalf of minors. Typically, a guardian of a minor’s estate can’t make housing, schooling or medical decisions on behalf of a minor unless such powers are granted by the court or another document.
Guardian ad litem
A guardian ad litem is a person appointed to oversee and protect the interests of a minor child. One of the most important benefits of a guardian ad litem is that they have no personal interest in the outcome of the proceedings. Generally, their only role is to ensure that the child has someone looking out for their best interests. Only a court can appoint a guardian ad litem.
How to establish guardianship
Each state has specific filing and notice requirements for establishing guardianship over a child. The laws of the child’s home state determine the guardianship proceedings.
An experienced attorney can help you understand the exact steps you’ll need to take. However, the general steps are as follows:
- Submit an application in the county where the child lives (they must be living there at least six months)
- Attend a hearing where a judge reviews evidence, asks questions and hears testimony to determine whether the guardianship will be in the child’s best interests
In some states, a court investigator interviews the proposed guardian and, potentially, the child before the hearing.
Can you get guardianship without going to court?
Most states require an in-person hearing before the court approves guardianship. However, there are more informal relationships that resemble a guardianship, such as naming a temporary or emergency guardian, that may not require a court hearing. Typically, these arrangements are short-term and last until the court makes final decision on the petition for guardianship
How to get temporary guardianship
Sometimes a child’s parents are in a situation where they can’t care for their child for a non-permanent period of time. Rather than go to court, in some states, the parents may sign an agreement giving temporary decision-making authority for the child to someone they trust (typically a family member).
However, the state may set a time limit—often six months—for the guardianship to be effective. If you need to extend the temporary guardianship beyond that time, you may be able to sign another temporary guardianship agreement, or you may need to go to court to get a permanent guardianship.
How to get emergency guardianship
A person may file for emergency guardianship when there’s an immediate, pressing need for a guardian, such as where a parent experiences a medical emergency and can’t care for their child.
In some states the court must hold an emergency hearing within a few days to consider the request. In others, the court may appoint an emergency guardian without holding a formal hearing.
An emergency guardianship lasts for a short time, typically 14 days. To extend the guardianship, a person usually needs to file a petition for a permanent guardianship.
End of guardianship
Guardianship orders may terminate after a set time frame, such as six months or when certain events occur. These events may include:
- The guardian resigns
- The child reaches the legal age of majority
- The child or guardian dies
- The child’s assets have been depleted
- One or both parents have taken the necessary steps to be able to provide appropriate care and a stable home for the child
- A judge determines the guardianship is no longer necessary
- A judge finds guardianship is no longer in the child’s best interests
Depending on the nature of the guardianship, the person wishing to terminate the agreement must file a petition and most likely attend a hearing.
Alternatives to guardianship
Many states offer alternatives to guardianship that allow the parties to avoid going to court or have a limited guardianship role. These may include:
- Medical proxy: This person has the right and authority to make healthcare-related decisions on another person’s behalf in the event that person is unable to do so due to incapacity.
- Power of attorney: This allows you to name an “agent” to handle issues on your behalf. State laws on powers of attorney vary, but many states allow both financial and healthcare powers of attorney.
- Representative payee: This person receives state or federal benefits on behalf of a recipient who’s unable to manage their own funds.
- Supported decision-making agreements: These allow you to name one or more people to help you make decisions that you can’t make on your own due to disability or limited capacity.
- Standby guardian: A minor child’s parents or legal guardians may select a standby guardian to temporarily take over caring for a child in the event the parents can no longer do so. The parents maintain most or all of their parental rights. Ultimately, the court may appoint a permanent guardian. If the standby guardian wants to become the permanent guardian, they must file a case.
When to speak with a lawyer about guardianship
Guardianship may have long-term psychological, financial and emotional consequences for everyone involved. It can also be complex to navigate. Many people lean on the support of experienced attorneys who know the laws in their state.
A lawyer can help you determine if guardianship or an alternative is preferable for your situation. Then they can advise on how to proceed, including filing paperwork and best presenting your case before a judge. They can also explain if and how you may be able to obtain guardianship without going to court.