A non-parent may obtain legal authority over a minor by obtaining a guardianship. A guardianship grants an individual “care and custody” of the child and typically occurs in cases in which a parent is unable to provide care for the child. A guardianship does not terminate parental rights, but simply allows for the non-parent to exercise custodial decision making on the child’s behalf.
To begin the guardianship process, the non-parent should file a petition for minor guardianship with the court. During the filing process, the court will assign a hearing date before the court commissioner. It will also appoint a Guardian ad Litem (GAL) to the case. A GAL is a family law attorney appointed to represent the best interests of the minor. Both parties should meet with the GAL and provide evidence to support his/her case. The GAL will make a recommendation to the court on whether or not a guardianship should be granted.
At the initial hearing date, the commissioner has the authority to grant a guardianship if the parent consents. The parent should sign a Waiver and Consent to Petition for Guardianship of Minor. If the parent does not consent, the court will set a date for a contested trial before the Judge. At the trial, the party requesting guardianship must show that the parent is unfit, and therefore a guardianship is necessary. This is a high burden to meet, so the non-parent must come to trial prepared with all relevant evidence to meet this burden.
If a trial is held and the judge grants the guardianship, it shall be in place until the minor turns 18 or if a parent of the child can demonstrate that he/she is suitable and willing to act as guardian of the minor and terminating the guardianship is in the minor’s best interest. A petition to terminate guardianship can only be filed more than 180 days after a previous hearing on the guardianship petition.
Guardianship cases involve very specific paperwork and difficult evidentiary burdens. It would be best to retain an attorney to ensure the case is appropriately handled. Our office has successfully represented both sides of a guardianship case and can provide a free consultation on the matter.