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Circumstances different for child guardianship

by Natalia Vander Laan

The court-appointed guardianship over a minor child shares many procedural rules with the guardianship over an adult person. However, it occurs under different circumstances. Typically, parents have the legal right to make decisions for their children. But when a child’s parents are unable to care for the child, a guardianship over a child’s person may be needed. Also, a guardianship over the child’s estate may be needed if the child owns assets, for example an inheritance or life insurance proceeds.

Any person who disagrees with a proposed guardianship can object to it by filing an objection and appearing at the guardianship proceeding to be heard by the judge. If a person would also like to be considered as a potential guardian, then such person will have to follow all of the steps to file for guardianship. If multiple persons seek to be appointed the guardian, the judge will decide who to appoint after a hearing or a trial.

A court-ordered guardianship over a child lasts until the child turns eighteen years old unless it is terminated sooner. After a guardian is appointed, if the order is wrong or unjust, a person can file a motion to set aside the order. This motion must usually be filed within six months and to prevail, a person must prove that the order was obtained due to fraud, misrepresentation, mistake, excusable neglect, or misconduct of a party involved in the guardianship proceeding. Anyone can ask the court to remove and replace the guardian if the guardian has failed or neglected to perform their duties but someone must request to serve as a new guardian. Finally, if a guardianship is no longer needed, a person can ask the court to terminate it.

While the guardianship lasts, there are programs available to financially assist relatives who are acting as guardians. Various federal, state, and non-profit organizations offer food stamps, welfare benefits, free child care, cash benefits, as well as free support and information. A guardian can also attend a free guardianship class to learn the basics of guardianship law and the court procedures.

A protected minor who has a guardian can still have visitation with parents and other relatives. If the guardian unreasonably denies or restricts contact, a relative can file a petition for visitation. But if the guardian believes that restrictions are necessary to protect the child, the guardian can petition the court to request approval of such decision.

Sometimes, a temporary guardianship might be explored as an option if the guardianship is needed for six months or less. The parents have to sign and notarize a temporary guardianship agreement and, if the guardianship is for a child fourteen or older, the child also has to sign the agreement. A temporary guardianship agreement is a private agreement that does not require a judge’s approval. This temporary agreement becomes effective the day it is signed by all the required parties and it automatically expires six months later unless an earlier date is agreed upon. Temporary guardianship will not allow the guardian to obtain medical insurance for a child and some medical providers might not accept it. Therefore, if the guardianship is still needed after the agreement expires, the parties can sign another temporary agreement or they should petition for a permanent guardianship through the court.

In contrast, when the guardianship over a child appears to be a necessary permanent solution, the alternative to permanent guardianship could be adoption.

Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.