Most frequently this comes up when neither parent is able to adequately provide the "care, custody and control"--essentially, the rearing or upbringing--of a child or children in common, such as when one or both parents are deceased, incarcerated, on drugs, in rehab, sick, disabled or otherwise unavailable or unwilling to parent at that point in time. So how does this happen? Sometimes someone calls the authorities to report a concern of neglect or abuse of the child(ren) by the parent(s), and the state child-protective services agency temporarily takes over legal custody and physically places the child with a relative, friend, foster parent(s) or group home. Other times the parent(s) self-refer (admit they need help), or their parenting abilities are not in question at all. They just simply will be unable to care for their child(ren) for a certain period of time--say, while serving in the military in Afghanistan or caring for a sick relative out of state--and must make arrangements.
So who can be a guardian or custodian?
Basically, a guardian can be anyone who, for whatever reason, takes on the role of surrogate parent either temporarily or permanently because he or she is better equipped or is simply in a better (or the best) position at that moment to give a child the time, attention, bonding, love, support, patience, guidance and discipline he or she needs to be a healthy, happy, well-adjusted child who can grow into a well-adjusted, contributing adult member of society. If the child is or could be enrolled in a federally recognized tribe, then ICWA (Indian Child Welfare Act) kicks in, and placement must be (in order of preference) with a family member, tribal member, member of another tribe or non-Indian family. Regardless, a family-court judge makes the decision, at least when it comes to final/permanent guardianship, and they must determine whether the particular placement that is being proposed is in the best interests of the child at issue.
For a guardianship or custodianship to happen, do the parents have to agree to it?
If either parent is alive and reachable, each must receive notice when another adult person is considering or petitioning the court for custody of their child or children at issue. Sometimes this is easy to accomplish; sometimes not so easy, if they are avoiding being found or it is not known where they currently reside. However, if they can be given notice and be involved in the legal process from the beginning, it will make for a lot quicker and easier transition. It's even better if they consent (agree) to the proposed guardianship/custodianship, although of course that does not always happen and not surprisingly is much less common than contested proceedings.
So what must or can a guardian or custodian do?
They must provide a roof over the child or children's head(s), provide them a bed to sleep in, clothes to wear and food to eat. They can seek and obtain any medical treatment that might be needed for the child but must notify the parents if there is any medical emergency and generally share any and all health information with the legal parents, be they the biological or adoptive parents or what have you, unless the guardianship has been made permanent. Even then, though, they still may be required to allow the parents to have visitation/parenting time and exercise other rights so long as their parental rights have not been terminated.
What is the difference between temporary and permanent guardianship?
Essentially, temporary guardianship is used when there is an "emergency" or unforeseen situation affecting the life or health of a child, such as both parents dying in a car crash simultaneously. It also may be used for physical-only guardianship when the parent is unavailable for a time but not giving up their parental rights or responsibilities on a permanent basis. Permanent guardianship is typically awarded when parents are deceased or fail to get their act together after a temporary guardianship is awarded, and typically is a precursor to termination of parental rights followed by adoption, the most "permanent" of permanent guardianships. Of course, all guardianships of a minor child end when the child comes of age (turns 18 or whatever the age of majority is in that jurisdiction) or becomes an emancipated minor (a topic for a whole other legal guide!). Whether you are a parent or are trying to become a physical and/or legal guardian, best of luck to you!
This legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship.
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