Guardianship of a Minor

A court order giving an adult who is not the parent legal authority over a child's care, or over the child's property, without ending the parents' rights - how it differs from custody and adoption, who can be appointed, what the parents keep, and how it ends.

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What it means

Guardianship of a minor is a court appointment that gives an adult - typically a grandparent, relative or family friend - the legal authority to make decisions for a child whose parents are unable, unwilling or unavailable to do so. It exists in the probate or family code of every state, and it differs from the two things it is most often confused with. Unlike custody, which allocates parental rights between parents, guardianship places a non-parent in the parental role. Unlike adoption, it does not terminate the parents' rights: the parents remain the child's legal parents, usually keep a right of reasonable contact, remain liable for support, and can ask the court to end the guardianship when they are again able to care for the child.

Most states separate guardianship of the person, which covers where the child lives, school enrollment, medical consent and day-to-day decisions, from guardianship of the estate (sometimes a conservatorship), which manages money or property the child owns - an inheritance, a settlement, life-insurance proceeds - under court supervision with a bond, an inventory and periodic accountings. A parent can nominate a guardian in a will or a written designation, and the court gives that nomination weight, but the appointment is always the court's and is made on the child's best interests. The parents receive notice and may object; where a living parent objects, the petitioner must generally show that placement with the parent would be detrimental to the child or that the parent has abandoned the child, because a fit parent's right to custody has constitutional weight.

Many states also provide lighter tools that avoid a full guardianship: a temporary or emergency guardianship for a fixed period; a standby guardianship that takes effect on a parent's death, incapacity or deportation; and a power of attorney or delegation of parental authority, which lets a parent hand decision-making to a relative for a limited time without any court order and revoke it at will. A guardianship of the person ends automatically when the child reaches majority, and earlier on the child's adoption, marriage or emancipation, on the guardian's resignation or removal, or when the court finds the parents can resume care; the guardian remains answerable to the court for the child's welfare until then and, for an estate, until the final accounting is approved.

Where this comes from

When people hire a lawyer for this

A relative caring for a child informally usually discovers the need for a guardianship at the school office or the doctor's surgery, when a signature is refused. A lawyer is worth having when a parent may object, when the child owns or will receive money, when the child receives benefits that require a representative payee, or when immigration status is involved (a guardianship order is one route to the findings a child needs for special immigrant juvenile status). Parents should also think about nominating a guardian in a will, because without one the court chooses among whoever applies.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• AdoptionThe court order that makes a child legally the son or daughter of someone other than the birth parents - the kinds of adoption, whose consent is required, how the birth parents' rights end, the home study and the hearing, and what the order changes about inheritance, records and the child's name.
• Annulment (Void and Voidable Marriage)A court judgment declaring that a marriage was never valid, as distinct from a divorce that ends a valid one - the difference between a void and a voidable marriage, the grounds each state recognizes, who may bring the case, and what an annulment does to property, support and children.
• Child SupportMoney one parent pays the other toward a child's living costs, set in most cases by a state formula rather than by negotiation.
• Common-Law MarriageA marriage formed without a license or ceremony by living together as spouses and holding yourselves out as married - which states still allow it, what has to be proved, why every state recognizes one validly formed elsewhere, and what it means for property, support and inheritance when the relationship ends.
• Dividing Retirement Accounts in Divorce (QDRO)How pensions, 401(k) plans and IRAs are divided at divorce without tax or penalty - what a qualified domestic relations order is and why a divorce decree alone is not enough, the difference between a defined-benefit and a defined-contribution split, the plans that need a different order, and the mistakes that cost a former spouse the share the decree awarded.
• Establishing PaternityThe legal step that makes a man a child's father in law - and signing the hospital form is one of two routes, not a formality.
• Grandparent and Third-Party VisitationWhen a court can order that a child spend time with a grandparent, step-parent or other non-parent over a parent's objection - the constitutional limit set by the Supreme Court, the circumstances in which state statutes allow a petition, the special weight a fit parent's decision receives, and what a petitioner must prove.
• Grounds for DivorceThe legal basis a divorce is granted on - and in every state today at least one basis requires proving no wrongdoing by anyone.
• Guardian ad Litem and Custody EvaluatorThe two neutrals a court most often appoints in a contested custody case - what a guardian ad litem does and does not do, how it differs from a child's attorney and from a custody evaluator, who pays, what they may see, and how their reports are used at trial.
• Legal and Physical CustodyTwo different things the word "custody" covers: who makes major decisions for a child, and where the child lives.
• Legal SeparationA court status in which spouses live apart with binding orders on support, property and children, while remaining married.
• Marital Property DivisionHow a court splits what a couple owns - and "equitable" means fair in that state's judgment, which is not the same as half.
• Modifying a Custody or Support OrderChanging an existing family court order - which usually requires proving something has changed, and never happens by the parents' agreement alone.
• Parenting Plan and VisitationThe written schedule and decision-making rules for a child after separation - and the document courts increasingly require rather than invite.
• Prenuptial AgreementA contract made before marriage about property and support - enforceable in every state, and set aside more often than most people expect.
• Protective Order (Restraining Order)A court order telling one person to stop contacting or coming near another - enforceable by police, and valid across state lines.
• Relocating With a ChildMoving a child away from the other parent - the family law dispute most likely to require the court's permission before the move, not after.
• Spousal Support (Alimony)Payments from one former spouse to the other - discretionary in most states, and taxed differently for instruments made after 2018.
• Termination of Parental RightsThe court order that permanently ends the legal relationship between a parent and child - the grounds a state must prove, the heightened standard of proof and right to counsel, the difference between voluntary relinquishment and an involuntary petition, and what the order does and does not end.

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