Guardianship is the legal process in which someone, other than a parent, is given custody of a child or when a parent or other person is given authority over a child’s property. A legal guardian is an adult whom the court chooses to be responsible for, and to care for a child, to manage the child’s property, or both. Legal guardians are legally obligated to supply the minor with food, clothing, and personal necessities. Legal guardians are also responsible to ensure the minor is receiving the proper care, maintenance, and support.

A guardianship of the estate allows the guardian to make financial decisions for a child, and is often filed when a minor is to receive a large monetary gift, civil settlement or inheritance.

Both parents and non-parents can become guardians of the person and/or the estate for children.

A Petition for Guardianship may be filed in the county where the minor resides, or in the county which serves the best interest of the minor. The Probate Court typically requires the preparation of a report and recommendation on the petition before it will make a determination.

Once the Petition for Appointment of Guardian has been filed, the clerk will set the matter for hearing, which is generally set approximately 45 days from the date of filing. Once the hearing date has been secured, notice of the hearing must be served on all first and second-degree relatives. Some relatives can be served by first class mail, but others, such as parents, must be personally served. If any relatives disagree with the proposed guardianship, they may file a written objection and express their objections at the hearing. It is often extremely difficult to get all the parties served, and the courts are extremely diligent in making sure that all appropriate persons received notice. If not, the court will send you away and direct you to complete proper service. It can be a rather complicated and frustrating process.

During the period of time from the filing to the hearing, a Court Investigator will complete a background investigation for each proposed guardian, for any adult living in the home where the minor will reside and for any person listed as a potential caregiver for the child. There is a fee for the investigation, which is not covered by the filing fee. Once the investigation is complete, the Probate Court Investigator will prepare a report for the judge. Copies of the report will also be provided to the proposed guardian and any other interested parties in advance of the hearing date.

The following needs to be considered when deciding whether to proceed by way of guardianship versus adoption: The granting of an adoption petition legally operates to terminate the biological or legal parents’ rights, while legal guardianship preserves the birth parents’ legal rights intact. Within the context of a legal guardianship, the biological/legal parents can petition to terminate the guardianship at any time and reclaim custody of their child. While a guardianship is in place, birth parents may still enjoy rights to visitation with the child. Typically, adoption is a more involved legal process than the legal guardianship process, since adoption is permanent, while legal guardianship may be temporary.

While the guardianship process may be somewhat shorter and less involved than the adoption process, special care must be taken in preparation of all necessary forms and ensuring compliance with all notice and service requirements of the court, which is no small task. The Law Office of Kevin M. Cecil has been assisting individuals and couples with guardianship petitions for the past 13 years, and continues to take great pride in ensuring the process remains seamless and transparent for every client, every time.