INTRODUCTION As adults, it's our responsibility to protect children. Unfortunately, children in Arkansas experience abuse and neglect every day. If you're reading this guide, it's likely you know a child who could benefit from being removed from his or her current home life. If so, I encourage you to push through any fears you may have of damaged relationships with family or friends and take action for the little one in your life who so desperately needs protection.
Yes, you may expose someone you know and love to potential criminal charges. Yes, things may be different in your relationship with them. But in a case of potential child abuse or neglect, the old adage, "better safe than sorry," may literally mean the difference between life and death for a child.
In the sections that follow, I will walk you through the steps of gaining custody of a child through a guardianship in Arkansas. While many of the procedures listed in this book may apply to adult guardianships, Guardianships in Arkansas is limited to helping Arkansans use our legal system to protect children.
One more thing before we get started. I want you to think of the child whose situation prompted you to read this book. Think about the facts and circumstances for which you have personal knowledge and answer this question: Based on what I know, is that child's life or health in imminent danger? If you answered yes, I want you to take the following actions:
1. Call the Crimes Against Children Division Hotline at 1-800-482-5964; and
2. Call an attorney who regularly handles guardianship cases. GUARDIANSHIPS GENERALLY If you answered no to the question above, a guardianship may still be appropriate for the child you're thinking of. While the introduction text focuses on situations in which a child's life or health is in imminent danger, Arkansas law does not require such an emergency for a guardianship to be granted (more on emergency guardianships later).
In every guardianship case, the judge will first need to determine if a person is incapacitated. For purposes of minor guardianships, incapacity is usually easy to prove because it means proving a person is under the age of eighteen. Once the judge determines the person is a minor, he or she must decide whether a guardianship is necessary to promote and protect the well-being of the minor and his or her property. In other words, is it in the child*s best interest to be placed into the custody of another person for temporary or permanent protection of the child and his or her belongings?
Once a judge orders a guardianship, the guardian (the person appointed by a judge to have care and custody of the minor child) is responsible for the protection, training and education of the ward (an incapacitated person for whom a guardian has been appointed), and has the authority to make decisions on behalf of the ward to carry out those responsibilities.
It's important for all parties to remember that a guardianship does not have the same legal effect as an adoption. Unlike adoption, a guardianship does not terminate the rights of any parent, and courts often grant visitation rights to parents in a guardianship. A guardianship also leaves open to a parent the option of petitioning the court to regain custody of his or her child.
When petitioning the court for a guardianship, you will need to consider whether a guardianship is needed for the person (care and control over the minor*s physical needs) or for the minor*s estate (assets of the minor). Typically, guardianship petitions for a minor seek a guardianship of the person and the estate, but the distinction should be discussed with your attorney.
In the next section, I will walk you through the process of becoming an appointed guardian. BECOMING A GUARDIAN Who can be a guardian?
While Arkansas law prefers family members over all others for appointment as guardian of the person, virtually anyone can petition the court for a guardianship as long as he or she meets the following requirements:
1. Resident of Arkansas;
2. Eighteen or older;
3. Of sound mind; and
4. Not a convicted or unpardoned felon.
If a petitioner can prove these requirements, he or she is eligible for the court's consideration to be appointed as guardian.
Venue: Where must a petition for guardianship be filed?
Arkansas law requires that a petition for guardianship be filed "[i]n the county of this state which is the domicile of the incapacitated person." In other words, the petition must be filed in the county of the minor's permanent home. If the minor does not have a permanent home in a specific county, the law allows for the petition to be filed in the county where the minor currently lives, regardless of how permanent the residency. Your attorney will be able to determine proper venue.
Who must be given notice of guardianship proceeding?
There are many rules about who is entitled to notice of a guardianship proceeding. Your attorney should meet all notice requirements before the hearing. For purposes of this guide, however, you should know that the minor child's parents will almost always be entitled to notice. The few most relevant exceptions to this rule include any parent:
1. Who has in writing waived notice of the hearing; and
2. Whose existence, relationship to the minor or whereabouts is unknown and cannot by the exercise of reasonable diligence be ascertained.
Although a minor is typically never entitled to notice, if the minor is over fourteen years of age, notice is required.
What must be proven to become a guardian?
In order for a judge to appoint you as guardian, he or she must find that:
1. The child is actually a minor;
2. A guardianship is desirable to protect the interests of the minor; and
3. You are qualified and suitable to act as guardian (see requirements above).
What is a bond and when is it required?
When the court appoints a guardian, the law may require an added layer of protection for the ward by requiring the guardian to provide a guardianship bond. A bonding company provides the bond to the guardian for a fee, and if the guardian mismanages or steals any of the ward*s assets, the bond will act as an insurance policy for the ward. If the guardianship is of the person only (not estate), a guardianship may not be required at all. POWERS AND RESPONSIBILITIES OF A GUARDIAN General Duties of a Guardian
A guardian is given wide discretion in making decisions for the well-being of a minor. Generally, the guardian is to see that the minor is "protected, properly trained and educated, and that he or she has the opportunity to learn a trade, occupation, or profession." If the guardianship is also for the estate of the minor, the guardian may be ordered to provide an accounting to the court of the minor*s assets.
Decisions Requiring Court Approval
Despite being given wide discretion, some decisions made by the guardian on behalf of the ward require the court's approval. Those decisions include:
1. Consent on behalf of the incapacitated person to abortion, sterilization, psychosurgery, or removal of bodily organs except when necessary in a situation threatening the life of the incapacitated;
2. Consent to withholding life-saving treatment;
3. Authorize experimental medical procedures;
4. Authorize termination of parental rights;
5. Authorize an incapacitated person to vote;
6. Prohibit the incapacitated person from obtaining a driver's license; or
7. Consent to a settlement or compromise of any claim by or against the incapacitated person or his or her estate.
Support for Minor Ward
Despite a guardianship order giving custody to a non-parent, support for a minor ward remains the responsibility of the parents. In reality, however, financial support for the ward often becomes the responsibility of the guardian. As guardian, you may seek financial benefits on the child*s behalf (i.e., public assistance, Social Security, etc.). All funds received for the child must be used for the child*s benefit, and the guardian will be required by the court to report annually how the ward*s money was spent.
All guardians are required to file an annual report, which should include the following information:
1. The ward*s current mental, physical, and social conditions;
2. His or her present living arrangements;
3. The need for continued guardianship services;
4. An accounting of his or her estate if the guardian has been delegated that responsibility by the court order or as a result of being a guardian of the estate; and
5. Any other information requested by the court or necessary in the opinion of the guardian.
A guardian may also petition the court to be reimbursed for funds expended on behalf of the ward. EMERGENCY GUARDIANSHIPS The emergency guardianship, also known as a temporary guardianship, is sought when a child's life or health is in imminent danger. In this situation, your attorney will file an emergency petition for guardianship, and request that the judge order a temporary guardianship in order to immediately protect the well-being of the child. If the judge finds that the life or health of a child is in imminent danger, he or she will appoint you as temporary guardian. The appointment of a temporary guardian cannot last more than ninety days, so there must be another hearing to determine if the necessity for a guardianship remains. During that time, if you feel like the danger to the child will not subside within ninety days, your attorney should file a petition for permanent guardianship and serve it upon the ward's parents. This petition will be heard and ruled upon at the second guardianship hearing and the judge will determine whether a permanent guardianship (a guardianship which lasts until the ward reaches eighteen) is in the best interest of the child.
You should understand that my urge to call the child abuse hotline may result in the child being removed and placed into the custody of the Department of Human Services (*DHS*). Once custody shifts to DHS, it will be more difficult to gain custody of the child due to the juvenile court's obligation to allow the offender parent a certain amount of time to work toward regaining custody of his or her child.
I recommend calling the child abuse hotline only if you feel there is an immediate threat to the health or life of a child. Otherwise, you should consult an attorney about filing an emergency petition for guardianship, which will accomplish the goal of removing the child from the dangerous situation, but without the custody change to DCFS that may come from the state*s removal of a child. TERMINATING A GUARDIANSHIP A guardianship may be terminated under the following circumstances:
1. By the death of the ward;
2. The marriage of the ward (although marriage does not terminate a guardianship of the estate); or
3. The ward reaches the age of eighteen. CONCLUSION The guardianship serves as a great legal tool to protect the life and health of children, and provides a buffer between the offending parent and the child, thereby allowing the parent/child relationship to be maintained while the parent works to become fit. For this reason, a guardianship is most common in situations where a grandparent discovers the abuse or neglect of a grandchild and desires to take custody of that child without the risk of their adult son or daughter's parental rights being terminated.
For more information on guardianships, call Evan C. Bell at 501-442-6300 or send your questions to [email protected]