Attorneys

A guardian (or guardian ad litem) is appointed for a minor when the parents are not able to care for the minor or are unwilling to do so.  A minor’s guardian has full time legal custody and control of the child.  A person appointed as a guardian is usually a close family member or other close adult of the minor, or the local child services agency.  If you are interested in petitioning the court to appoint a guardian over a child or to become a child’s guardian you may want to consult an attorney. In establishing a guardianship you may be required to oppose the child’s parents, as well as prove to the court it is in the child’s best interest.

STEP 1 – Determine if you Should File For a Temporary or Permanent Guardianship.
A permanent guardianship may involve terminating the parental rights of the minor’s parents.  This will involve a longer and more complicated court proceeding than the appointment of a temporary guardian.  A temporary guardian is usually sought when the parents will be gone for a certain period of time, such as being incarcerated or for a health condition.

STEP 2 – Determine Who Is Eligible To File The Petition With The Court
Each states law may vary as to who can file for a guardianship.  Some states allow “any concerned person”, including the minor themselves if a certain age, to file the petition.  Some states restrict it to a relative or the child services agency.  In some states a child must already be ordered a dependent of the state’s juvenile system to have a guardian appointed. 

STEP 3 – Prepare the Correct Form
Some jurisdictions have a specific form for the appointment of a guardian for a minor.  Other jurisdictions may use a general form for all civil actions.  In addition to submitting the required court form, some states may also require an affidavit from the potential guardian in which the person must attest to their current relationship with the minor and provide other important information to the court. 
You should consult with an attorney if you do not know which forms you need to file.

STEP 4 – File the Court Forms with the Proper Court
If you do not know which court to file with you should consult an attorney.  Some jurisdictions have a general trial court for all civil matters while other jurisdictions may have a specific court for guardianship matters, such as Family Court or Juvenile Court.

When you file the court form with the court clerk most states require that you provide three or more copies of the petition and the summons.  A summons is a court order requiring a party to answer a complaint that has been filed against them and to appear before the court.  The summons may be a part of the petition or may be a separate document.  The clerk will stamp all of your copies and give you back at least two, one for yourself and one for service on the other party.

STEP 5 – Pay the Court Costs
When the court forms are filed the clerk will require that you pay the appropriate court costs.  If you are indigent, or if you are the minor, you may ask the court to waive the fees, which may be included on the petition or may require a separate form.

STEP 6 - Serve a Copy of the Guardianship on the Parents
The party initiating a court action is responsible for serving all of the other parties involved.  Serving the other party means giving them a physical copy of the complaint you filed as well as the summons.  In an appointment of a guardian the minor’s parents must be served and service on the state child services agency may be required as well.  You should contact an attorney to determine who should be served in your state.

In most states, service may be done through the mail or by having another person serve the opposing parties in person.  In some jurisdictions you may pay a fee to have the Sheriff serve the opposing parties.  Most states do not allow the plaintiff to personally serve an opposing party.

STEP 7 - Proof Of Service
After the opposing parties have been served most states require the plaintiff submit a “proof of service” with the court.  In this document the person who served the opposing parties must attest to the service, how and when they were served.  The proof of service may be a part of the initial petition or may be a separate document.
 

If you are filing for a guardian to be appointed for a minor you should have an experienced attorney representing you.  A court usually will only appoint a guardian if the parent is absent or is found to be “unfit”.  To be unfit usually requires that the child is subject to abuse at home or the parent has a condition which makes them unable to care for their child.  An attorney will be helpful because the person filing for the guardianship must prove that the parent is unfit.  In some circumstances the court will appoint an attorney specifically for the child involved as well.

Family Law Sub-categories