A guardianship is established when the court determines that a child’s biological parents are no longer able to care for a child appropriately. A case may be brought to court by child protective services if abuse has been filed against the parent. A case may also be brought to court by the person attempting to become guardian or a relative of the minor in question. Whatever the situation, there are several common problems that can arise when trying to become a guardian. While the legal process of guardianship does not strictly require the use of an attorney, having one is highly recommended.
The Custodial Parent Objects to the Guardianship
This is perhaps the most common problem with acquiring guardianship. Most situations involve a forced removal of the child from parental custody, but the law here is somewhat ambiguous because the biological parents’ rights may still intact. This gives the parent a great deal of say over the guardianship and who can become a guardian. The parent may also make certain demands, such as reasonable visitation, that may conflict with the guardian’s schedule and make the overall process much more difficult.
Missing Notice Forms
The law is very strict on the requirement that a guardian give “legal notice” to certain individuals, relatives and agencies involved with the child. Some of these individuals may be apparent, such as the child’s current parents or custodians. Others may not be apparent or may not be directly involved in the child’s care. It is your responsibility to find these individuals and “serve” them a legal notice form. If you cannot find the person, then you must appeal to court to allow the case to go forward regardless. A mistake during this process can require you to start the guardianship process all over again.
Home Study Failure
The court will appoint an investigator to interview you, the child, the parents and other applicable individuals. They will also conduct a home study to ensure that your home environment is suitable and meets certain standards. The investigator will be looking to ensure that the child will have adequate personal space, access to nearby education, access to acceptable healthcare and a space appropriate for parental visitation. Inadequacies in any of these areas will be reported to the court and may result in a delay of the guardianship process.
Return of Absent Parent
It should be noted that biological parents always have first parental right, even if they have been absent from the child for a long time or were not currently holding custody. A guardianship case may be hindered if an absent parent returns unexpectedly to claim his or her parental rights. The court will have to assess the parent’s appropriateness and may assign the child to the returned parent instead of the guardian.
A judge makes the final decision on all guardianship cases. Keep in mind that a guardianship is not an adoption, and it can be revoked by the court at any time. Many guardianship cases on Long Island result in the child being ultimately returned to their biological parents.
Sources:
http://www.courts.ca.gov/1212.htm
http://oklaw.org/issues/family/guardianship
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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