A. Guardianships

Guardianship traditionally existed so that parental responsibilities could be exercised when parents are unavailable due to death, military deployment or other circumstances.

(1) Temporary Guardianship. Guardianship may be granted by a parent while the parent is unable to care for her children. Most states have specific forms that a parent may use to grant temporary custody to a trusted relative or friend.

(2) Formal Guardianship. In other instances a probate court may use formal guardianship proceedings to appoint a guardian when the parents are deceased.

In either case, the practical effect of the guardianship may include the development of a familial bond. Where parents have passed away, this is a positive development.

However, conflict may then arise between guardian and parents, or other extended family over the permanent care and custody of the children. In the vast majority of cases involving parents, the parents will prevail in their effort to regain care and custody of their children. Generally, only when the parent’s behavior rises to the level of unfitness will they lose permanent custody. If the state has a statutory basis for standing (such as described for Colorado earlier in the materials), and the parents are unfit, a guardian may seek permanent custody of the child. This may ultimately lead to adoption if the parents continue to neglect their children.

When conflict arises between a guardian and extended family members, the dispute may be less clear-cut. In most jurisdictions, the court’s determination will be made based upon the best interests of the child, as delineated within the statutory and judicial law of the jurisdiction.

By: Richard M. Arnold, Esq. Arnold & Arnold, LLP