Q&A Regarding Guardianship

If you’re the parent of a newborn or toddler, you may be thinking about naming a guardian for your child. This can be a difficult decision, especially if you have a plethora of choices or, on the other hand, no one you can trust. Or perhaps you plan on petitioning the court for guardianship of a child. In either event, you must adhere to the legal principles under state and local law.

Questions & Answers

The following are answers to several common questions about guardianships:

Q. How do I choose the guardian for my child?

A. In most cases involving a parenting couple, you designate the guardian in a legally valid will. This means that the guardian will raise your children if you should die unexpectedly. A similar provision may address incapacitation issues.

Choose the best person for the job and designate an alternate if that person can’t fulfill the duties. Frequently, parents will name a married couple who are relatives or close friends. If you take this approach, ensure that both spouses have legal authority to act on the child’s behalf.

Also, select someone who has the necessary time and resources for this immense responsibility. Although it’s usually not recommended, you can have different guardians for different children.

Consider, also, the living arrangements and the geographic area where your child would reside if the guardian assumes the legal responsibilities. Do you really want to uproot your child and send him or her to live somewhere far away from familiar surroundings? Don’t ignore these factors, or the myriad others that impact your decision.

Q. Do I have to justify my decision?

A. No. However, it can’t hurt — and it could help — to prepare a letter of explanation for the benefit of any judge presiding over a guardianship matter for your family. The letter can provide insights into your choice of guardian.

Notably, the judge will apply a standard based on the “best interests” of the child, so you should explain why the guardian you’ve named is the optimal choice. Focus on aspects such as the child’s preferences, who can best meet the child’s needs, the moral and ethical character of the potential guardian, and the guardian’s relationship to the child.

Q. How do I establish guardianship of a child who isn’t mine?

A. This situation is more tenuous, and the rules can vary widely depending on the location. Be sure to seek legal counsel who can help guide the process, which likely involves requesting the right of guardianship. To the extent possible, you’ll also want to obtain a letter of consent from the child’s parents, and file the letter with the court.

Next steps typically involve the court scheduling interviews with all the relevant parties, including those who have a vested interest in the proceedings. Most likely this will involve home visits to inspect the premises, along with a criminal background check of the proposed guardian. Then the court will make its decision.

Q. How does the court determine the guardianship of the child?

A. As previously stated, the court will use the standard of the best interests of the child. If the court agrees that the child’s best interests is for you to become guardian — considering all the facts and circumstances — it will approve the arrangement. Most states require guardians to sign an oath before they can assume responsibilities.

In addition, the court will generally require documentation of the guardianship. Your attorney can assist you in providing the proper documentation.

Q. What happens if the child’s parents object?

A. This is where things can get tricky. If you don’t obtain consent, guardianship is usually granted only in cases where a child has been abandoned or the judge decides that the child should be removed from the parents’ custody. Frequently, you’ll have to prove in court that the parents are unfit.

Furthermore, other relatives, such as grandparents, have certain legal rights and must be notified about guardianship hearings. Although you won’t generally need formal consent from all parties, any objections they raise could adversely affect your case — not to mention the tension it will likely create. If emotions spill over, consult your attorney immediately.

A major decision

Whether you’re naming a guardian for a child in your will or attempting to become a legal guardian yourself, the implications are enormous. Don’t take these matters lightly. Contact our Family Wealth and Individual Tax Group for the guidance needed under the prevailing laws.

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