Usually, only a parent of a child has the responsibility to decide about the care of the child. But sometimes a parent can no longer take care of their child. When this happens, a person that is not the parent can get legal guardianship.
Legal guardianship lets someone that is not a parent take care of the child. This person is the child's guardian. Once someone becomes a child's guardian, they cannot give up the responsibility unless a judge rules that:
- A parent is able to care for the child again;
- Someone else is willing to become the guardian; or
- The child turns 18.
To become a guardian, a person must:
- Be at least 18 years old
- Be a US resident (some courts will appoint undocumented immigrants)
- Be of sound mind
- Not be legally disabled
- Not have a felony conviction that involved harm or threat to a child
Effective January 1, 2018, a person's blindness cannot by itself prevent them from becoming a guardian.
There are 4 types of guardianship of a child:
- Permanent legal guardian
- Guardian ad litem (GAL)
- Standby guardian
- Short-term guardian, no need to go to court
Permanent legal guardian
A permanent legal guardian has to make sure the child has medical care, food, clothes, shelter, and education. The guardian can make important decisions for the child, such as:
- Enrolling the child in school
- Asking for special education services
- Taking the child to the doctor
- Getting medical care
- Applying for any public benefits the child may get
- Following any court orders that involve the child
To become guardian, there must be a court case where the judge approves the guardianship. The court only has the ability to appoint a guardian if any of the following are true:
- The parent cannot make daily decisions for the child even though the parent still has parental rights;
- The parent was notified of the hearing but does not show up to the hearing;
- The parent chooses to give up physical custody of the child; or
- The parent agrees to the guardianship.
Guardian ad litem (GAL)
A guardian ad litem, or a GAL, is someone a judge names to look into the facts of a case. A GAL can recommend what would be in the child's best interests. The GAL gives the judge their opinion about who should care for the child. The judge thinks about the GAL's opinion and then makes a final decision.
A parent chooses a standby guardian to take care of the child when the parent gets sick or dies. A guardian can also choose a standby guardian. The standby guardian then takes care of the child when the parent or guardian gets sick or dies.
A parent or guardian must go to court to name the standby guardian. This is most helpful when a parent or guardian is very sick or old. The judge must approve the guardianship.
The standby guardian does not care for the child until the parent or other guardian cannot. A parent or guardian can admit that they cannot care for the child. A doctor can also submit the parent or guardian's admission. A standby guardian can last for up to one year.
A short-term guardian is responsible for the child for one year or less. The parent or guardian picks the short-term guardian. The parent or guardian does not need to go to court, but the agreement must be in writing.
The agreement must be witnessed by at least 2 people who are at least 18 years old. A witness cannot also be the person trying to be the short-term guardian.
A guardian named by the court can also name a short-term guardian. But both parents must agree to the short-term guardian. The other parent must sign the document to give their consent.
The consent of the other parent is not needed when the other parent:
- Is dead
- Cannot be found
- Is unable or unwilling to care for the child
- Is an unmarried father whose paternity has not been established by court order
The short-term guardianship can't last for more than one year. The written agreement should state the exact date the guardianship ends. Or the agreement can state the guardianship ends if an event happens. For example, if the parent returns from active military duty.
The short-term guardian does not have to be related to the child. A parent or guardian can end the short-term guardianship at any time. Only one short-term guardian can exist at any one time.
If the child has assets such as property or money, a short-term guardian will not have control over these. In order for a guardian to control these assets on the child's behalf, a permanent guardianship is needed.