Legal guardianship is a very serious matter and needs to be carefully considered and planned.
Suppose you’re in the following situation: you’ve met and fallen for a divorcee with children, and you’re living with all of them. One afternoon, one of the kids suffers a heavy fall, and you need to take him to the emergency room immediately. The doctors begin treatment, and tell you you’ll need to sign off on certain medications before the rest of the treatment can continue. You, however, are neither parent nor guardian. At this point, there’s simply nothing you can do until a real parent is contacted.
Now, don’t worry – no doctor is simply going to let a child suffer if no one can be reached. But this situation is just one example of why you, as someone living with a child not your own, might consider guardianship.
It’s also a reason why, as painful as it might be, you might consider allowing your own child to be under someone else’s guardianship, if they’re not living with you.
Understand What Guardianship Is
Becoming someone’s guardian is just what it sounds like – you, as an adult, are being put in charge of decisions for someone who can’t make those decisions themselves, either because of youth, or injury, or declining mental capacity as someone ages.
If you’re becoming the guardian of a child, you’ll be in charge of many of the decisions a parent makes. Medical decisions, schooling, finances – all of these will likely be under your jurisdiction. Remember, however, that guardianship is not adoption. An adoptive relationship doesn’t legally end – once adopted, always a part of the new family. Guardianship ends, one way or another. It’s meant to guide an inexperienced or incapacitated person through a time of life that he or she isn’t properly equipped to handle.
It can be a godsend for a child that needs it. It can also create enormous tension between you and the child’s parents. If you’re going to do this, be prepared for conflict, and always do what’s best for the child. Fighting just to win in a battle like this only guarantees that everyone involved loses.
Let’s examine types of guardianship, why you’d need each one, and secondary options that might be available to you.
Understand How Guardianship Is
Consider the following scenario, and then ask yourself some questions.
Suppose, for whatever reason, a child is willed or gifted several hundred thousand dollars. Few courts in the country are going to allow a minor to handle that much money, especially if he or she just wants to spend it on toys. But while you might think the parents could take the responsibility, they technically can’t – it’s not their money. If they’re going to take responsibility for it, they will literally have to become guardians of their own child.
There’s good reason for this. Becoming a guardian means you’re not just responsible to the child, but to the courts as well. If you’re the guardian of someone’s finances, and you mishandle them, you are legally liable for the loss. A parent managing finances in this way wouldn’t be liable in the same way as a guardian.
In short, if you’re becoming the guardian of a child, you have to answer regularly to the courts as well as to your conscience.
So, then: why do you want to become a guardian?
Understand Exactly Why You Need to Become a Guardian
Full-fledged guardianship isn’t always the most appropriate answer for a child. Knowing why you’re seeking this in advance could save you a mountain of headache, and a great deal of bitterness from others.
Is it to make decisions about school, or health care?
If it’s simply to give yourself the legal power to enroll a child in school, or make medical decisions on his or her behalf, then guardianship may not be the best option for you. Several states (Texas, for example) allow these rights to be given to an adult other than the parents, so long as everyone involved fills out the necessary paperwork. If the child in your care isn’t neglected by his or her parents, but just living away from them, this is absolutely your best option. Guardianship strips parents of some rights, although they still remain parents in the eyes of the law. This is not the route to choose if you’re simply looking to take care of a child living with you, but that isn’t neglected or abandoned by his or her parents.
Consider, too, how it would feel the other way around. If your child is living with your ex, in someone else’s home, you’d probably be far more comfortable with extending certain rights to the new home than having your rights stripped away. Giving someone the right to pick a school, or sign off on medication, is much better than seeing your parental rights challenged.
Is it to handle someone else’s money?
One of the most common reasons for becoming a guardian is the situation we described earlier, where a child has significant financial assets that need protection. If this is your situation, and you’re not a financial guru yourself, then don’t – far better to let a professional handle it. As a parent, in fact, signing your child’s finances over to a guardian who understands money is one of the best things you can do.
Is it because a child is neglected, and you need to intervene?
If this is the case, be proud, and be prepared. You’ll be doing an honorable thing, and it will come with a difficult and bitter fight. You’ll be taking on the obligations of a parent, without adoption – which is to say, you’ll be taking on the obligations of a parent with few of the benefits. This is a big job. Don’t enter into it unless you’re sure.
If You're Certain, Make Sure You're Thorough
Applying for guardianship can be a tense legal process, and there are plenty of pitfalls in front of you. Follow these steps as carefully as possible.
Be Thorough, Be Strong, and Be Prepared: 6 Rules
1. Find a lawyer, or a mentor.
The very best thing you can do for yourself at this stage is to hire a lawyer. Seasoned legal expertise is far better than any amount of research you can do for yourself, and it ensures that all your documents are filed properly, and all your legal requirements met.
Of course, if you’re reading this website for help, there’s a good chance you can’t afford a lawyer. In that case, do yourself two favors early on – ask a lot of questions, and make lots of copies of everything.
Per the first part, there are plenty of volunteer legal associations across the country that help in situations like these. If you can’t afford a lawyer, they might provide one for you, or at least be willing to guide you through the application process. Find help early, and consult it often.
There’s a second good reason to do this, and we’ll get to it near the end.
The second favor you can do yourself, the one we mentioned earlier? It’s step two.
2. Make lots of copies of everything, fill everything out, and be immaculate and thorough.
Find the proper guardianship application for your state, and, as we keep stressing, make several copies. Each state’s website will have the applications online for you.
You’ll need the copies. One is for you, one is for the government, and others are for the parents of the child – and the child as well, if he or she is close to 18 and hasn’t yet consented. And if you’re wondering, in most cases, the child will have to consent.
These are legal documents, which means they need to be perfect – dot your i’s, cross your t’s, fill out everything in pen, and be scrupulously honest. A big enough mistake here can put you right back at square one, especially if a future legal fight hinges on the correct information in the application. The last thing you want is to be knocked back to the starting line when you’re finally in court.
3. Be prepared for a thorough background check.
If you don’t think you’ll pass one, check with a lawyer before you even attempt this.
Keep in mind, too, that if you succeed, you’re going to be called into court periodically to give updates on your ward’s welfare. If there’s even a chance of you getting into trouble between now and then, don’t do this.
4. Be prepared for a bitter court battle.
You’re going to have to make your case in court, and likely in front of the parents. If they’ve consented to the guardianship, this will be easy, but if you’ve had to go through this whole process in the first place, it’s not likely. As we mentioned, most states have legal options available for parents who want to grant certain rights to new caretakers. If you’re in court, that’s obviously not your situation.
Both parents have to be notified if someone is petitioning the government for guardianship of a child. The parents have the right to waive notification, which is basically the same as giving a green light. If the parents decide to contest the guardianship, however, you’ll have to make your case in court.
The application process will have prepared you for this, and will rely on much of the same information. But for making your case in court, the rule of thumb is that you’ll have to account for the past five years of the child’s whereabouts, and make a case based on this for your guardianship. You’re trying to prove neglect. In serious cases, this won’t be difficult, but it will require you to be thorough.
One other important thing – remember a few sections above, where we advised you to seek out legal help early for a reason we’d mention later? Well, that brings us to rule #5.
5. Be prepared to face a lawyer.
Here it is – if you can’t afford a lawyer, you don’t have the right to court-appointed counsel. But the parents do. They are, technically, the ones being accused, and as such, they have the right to government-sponsored legal counsel if they can’t afford it. You, as the person applying for guardianship, do not.
What this means is that you might well find yourself facing off against a lawyer when making your case. It’s all the more reason to be thorough and exacting.
Do not, however, let this discourage you – even if it seems like it was supposed to. This brings us to our final rule:
6. Have faith, and do what’s best for the kid.
Even if you find yourself fighting a lawyer in court, remember that the judge isn’t here to reward legal finesse, but to do what’s in the best interest of the child. Make your case well, stay calm, and trust the system. The judge has to balance the Constitutional rights of the parents with your own claim to guardianship. If keeping the child in the care of parents isn’t in his or her best interest, the judge is going to rule in your favor.
Or, better put, the judge is going to rule in the child’s favor. After all, it’s really about him or her anyway.