Establishing and Maintaining a Guardianship FAQ

What to do if you want to obtain legal guardianship of a child.

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How do I establish a guardianship?

The process is started by filing guardianship papers in court. A court investigator will likely interview you, the child and his or her parents if they are alive and available, and make a recommendation to the judge. The judge will then review the case and decide whether to appoint you, usually after a hearing. The court must find that the appointment is in the best interests of the child.

You also can use your will to name a guardian for your children.

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Can I be appointed guardian if the child's parents object?

As a general rule, guardianships are not granted unless:

  • the parents voluntarily consent
  • the parents have abandoned the child, or
  • a judge finds that it would be detrimental to the child for his or her parents to have custody.

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Who financially supports a child under a guardianship?

Unless a court terminates the biological parents' rights (uncommon in most guardianship situations), the parents are responsible for supporting their child. In practice, however, financial support often becomes the guardian's responsibility. The guardian may choose to pursue financial benefits on the child's behalf, such as public assistance and Social Security.

Any funds the guardian receives for the child must be used for that child's benefit. Depending on the amount of money involved, the guardian may be required to file periodic reports with a court showing how much money was received for the child and how it was spent.

Are You Prepared to Be a Guardian?

An obvious but important question to ask yourself before you take any steps to establish a guardianship is whether you're truly prepared for the job.

Do you want the ongoing responsibilities of a legal guardianship -- including potential liability for the child's actions?

If you're managing the child's finances, are you willing to keep careful records, provide a court with periodic accountings and go to court when you need permission to handle certain financial matters?

What kind of personal relationship do you have with the child? Do you want to act as the legal parent of this child for the duration of the guardianship?

Will the guardianship adversely affect you or your family because of your own children, health situation, job, age or other factors? Do you have the time and energy to raise a child?

What is the financial situation? If the child will receive income from Social Security, public assistance programs, welfare, a parent or the estate of a deceased parent, will this be enough to provide a decent level of support? If not, are you able and willing to spend your own money to raise the child?

Do you anticipate problems with the child's relatives -- including parents -- who may suddenly reappear and contest the guardianship? (This is rare, but it can happen.)

What kind of relationship do you have with the child's parents? Will they support the guardianship, or will they more likely be hostile, antagonistic or interfering?

It's smart to consider your options carefully before initiating a guardianship proceeding. After honestly answering the questions above, you may need to rethink your plans.

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Copyright 2004 Nolo