A guardian is a court-appointed individual who manages the affairs of someone who cannot take care of themselves. With respect to a minor, a guardianship may be needed if the child’s parents die or are otherwise unable to care for the child. Guardianships are complicated, court-monitored processes that implicate the best interests of the child and the rights of the parents. If you have concerns about the welfare of a child in your life, or you oppose a guardianship that is being requested, it’s time to speak with the Family Law & Probate attorneys of SederLaw.
What Is A Guardianship?
When a parent, or both parents, are unable to properly take care of the child, it may be necessary to ask the court to appoint a guardian. There are a number of situations in which a guardianship might be needed. Some of the most common reasons to seek one include:
- One or both parents are addicted to alcohol or drugs
- The child is exposed to domestic violence within the home
- A parent has abused the child
- A parent has abandoned or neglected the child
- The educational or health needs of the child are not being met
- The child has missed a significant amount of school without a good reason
- The parent(s) or the child (age 14 and up) consent to the guardianship
A guardian has the power to take care of, and make decisions for, the child. Importantly, however, the parents still retain certain rights. Guardianship, therefore, is not the same thing as either termination of the parents’ rights or adoption. A guardianship may be temporary (typically ending after a few months) or permanent (lasting until the child turns 18). It is always subject to further modification by the court, as circumstances dictate.
What Is The Difference Between A Guardian And A Caregiver?
In some cases, it may be possible to meet the child’s needs by designating a caregiver. A caregiver has the power to make healthcare and educational decisions for the child. This authority is shared with the parents, so the parents’ rights are not suspended as they are with a guardianship. The caregiver does not have to ask permission from the parents to act on behalf of the child. Caregivers are named by way of a caregiver authorization affidavit.
How Do I Obtain A Guardianship?
An adult or a child at least 14 years of age can request a guardian by initiating a case with the Probate and Family Court. The following items must be filed:
- Petition for Appointment of Guardian of a Minor (Form MPC 140). This form identifies the parties seeking the guardianship and why they believe it is necessary.
- Affidavit Disclosing Care and Custody (Form OCAJ-1). Informs the court whether there are any current or previous custody orders concerning the child.
- Bond (Form MPC 801). Notifies the court whether the child has money or other property that needs to be protected.
- If a parent consents, a notarized waiver and consent (Form MPC 440). If they don’t consent, a military affidavit (Form MPC 470) that informs the court whether a parent might qualify for free legal counsel based on military service.
There may be other forms to file, so speak with an experienced attorney for assistance with this process. All forms must be served on the parents and the child–if the child is 14 years or older.
If the parents consent to the guardianship, the process is rather uncomplicated. They can inform the court that they agree with the establishment of a guardianship by signing a notarized waiver and consent to the petition. But many guardianships are contested and will therefore require a court hearing.
What To Expect At A Court Hearing
As a general rule, the parents are the preferred individuals to raise the child. It is therefore not enough for the party who wants to become a guardian to show the court that he or she can do a better job of raising the child. The judge overseeing the matter must find that there is clear and convincing evidence that the parent or parents are unfit to care for the child.
“Clear and convincing” is a relatively high standard of proof. There must be little to no doubt that a guardianship is needed. The burden of meeting this standard is on the party requesting the guardianship. The judge will consider such questions as:
- Why are the parents unfit to take care of the child?
- Why is the petitioner (the party wanting to become a guardian) better suited to care for the child?
- Does the child have any special needs that should be taken into consideration?
- Why is it in the child’s best interests to live with a guardian?
- How will the guardian make sure the child’s needs are properly met?
- What contact should the parents have with the child if the guardianship is allowed?
As part of the hearing process, the parties may submit evidence favoring or objecting to the guardianship. This evidence may include court testimony, sworn affidavits, and documents. The parents who object to the guardianship have a right to legal representation, so it’s a good idea to have a lawyer if you want the court to approve your request. An attorney can assist with the process of submitting evidence to the court and making arguments in favor of the guardianship.
Contact Our Worcester Minor Guardianship Attorney
If you would like to learn more about guardianship of a minor, or you’re ready to get the process started, reach out to SederLaw. Our attorneys have counseled individuals seeking to become guardians of children in need. We can also represent you if you are the child’s parent or parents and you oppose the guardianship. Contact our Family Law & Probate team today.