How Child Guardianship Protects Children

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This blog will explain child guardianships. It is easier to understand why a child guardianship might be necessary by way of example.

For example, the minor child’s mother is using illegal drugs, does not work, and the biological father is either out of the picture or mother and father are using drugs together. The maternal Grandmother becomes aware that her daughter is not able to properly care for the minor child. She needs more than just grandparent visitation, but less than custody since her daughter might improve over time. The maternal Grandmother needs a guardianship.

Voluntary versus Involuntary Guardianship

The next question is whether the guardianship is voluntary or involuntary. If the minor child’s mother agrees to the guardianship because she is unfit at the time, then she will be in a much better position to terminate the guardianship when she is fit. The minor child’s mother will need to show fitness by clear and convincing evidence which is a very high standard.

However, being fit merely entails the following:

  1. being able to support the child such as providing clothing and other necessities;
  2. being able to provide food for the child;
  3. being able to provide housing for the child;
  4. being able to provide an education for the child; and
  5. being able to provide medical care for the child.

There is a rebuttable presumption that a fit parent is preferred over someone who is not their parent.

Why Evidentiary Hearings are Crucial

If the minor child’s mother does not agree to the guardianship, then the Court will set an Evidentiary Hearing to either confirm or deny the guardianship. If the maternal Grandmother prevails at the Evidentiary Hearing and is awarded an involuntary Guardianship, then it will be much more difficult for minor child’s mother to terminate the guardianship as the rebuttable presumption favoring the parent is deemed rebutted by the maternal Grandmother receiving an involuntary Guardianship. In this situation it might be difficult or impossible for the biological mother to dissolve the Guardianship and regain custody of the minor child. Consulting and retaining a knowledgeable attorney early in these types of cases can make a huge difference in obtaining a good and acceptable outcome.

Brian J. Steinberg, Attorney