How to Establish Legal Guardianship of a Child

by Ball Morse Lowe on June 3, 2019


If you’re interested in naming someone the guardian of your child or children or you want to become a guardian yourself, there are a number of steps to take and it’s a good idea to learn what you need before you get started. In all issues of custody over a child or children, the court seeks what is best for the child first and foremost. You’ll need to be able to show the court that you can provide that.

(If you need more detailed information about custody, download our free guide today)

What is Legal Guardianship?

Naming a legal guardian for your child is an option available to parents who are planning for the upcoming care for their children, usually because of extreme circumstances such as severe illness or an upcoming incarceration. Becoming a legal guardian is no small decision; it means you are the primary caretaker for a child or children. If you’re considering becoming one, you’ve obviously discussed it before arriving at this blog post, but you should make sure you’re ready for the responsibility.

Like other scenarios in which custody must be determined, the naming of a legal guardian usually accompanies some emotional stress. Learning your options as well as how they all work can help alleviate not only your own anxiety but also that of the child or children, which is, obviously, the highest priority.

How Does It Work?

A legal guardian is, in almost all aspects, a parent, at least in the eyes of the court. Guardians make all the same legal decisions a parent would for the children concerning their protection, education, care, and discipline. While the child or children’s parent(s) may have someone in mind, it’s ultimately up to the court if someone is named a guardian.

You’ll need to establish guardianship of the child by filing papers in court. Initially, you’ll file a petition which states your interest in obtaining guardianship. If you’re the potential guardian, you’ll also need a letter of consent from the child’s parents. Without the latter, it’ll be an uphill battle unless you’re in special circumstances.

How Does the Court Decide?

Like we said, the court’s top priority is the best interest of the child. All custody and guardianship decisions are made with the ultimate goal of fostering and encouraging the child or children’s happiness, as well as their health and development. Just like in a custody case, a guardian needs to show the court that they can offer this to the child in question.

Fortunately, most guardianship cases differ from custody cases in that the parents are often (but not always, obviously) on the same side as the possible guardian. You’ll need to present the court with the case that you’ll be able to provide a good home that gives the child a good life.

The court will use a variety of factors to determine what they believe is best for the child. Most often, and depending on the child’s age, they’ll take into account the wishes of the children, the mental and physical health of the parents, the special needs of the children (and the guardian’s subsequent ability to meet those needs, and whatever else they believe is pertinent to the case.

Can I Choose My Child’s Guardian?

Yes and no. If the guardian is being chosen because a parent has been deemed unfit to care for their children, that or those parents will not have as much of a say in who the court believes will best fit the situation. However, you can absolutely establish a guardian for your children in the unfathomable event that something happens to you and you’re no longer able to care for them.

The best way to do this is to simply name someone you trust and add their name to a clause in your will that expresses your desire for them to raise your children if you ever become incapacitated for any reason. You should also name an alternate just in case the first doesn’t work out. It’s not recommended to name two unless they’re a married couple, as disagreements after you’re gone can be messy.

When picking your children’s legal guardian, remember that they must be a legal adult, able to care for your children, and they must be able to afford to raise them via their own income or assets you leave behind.

Other Key Notes

If you leave a recommended guardian in your will, it’s good to also attach a letter in case the judge questions your decision. You can explain why, to the court, your chosen guardian is in the best interests of the child.

Generally, you cannot become a guardian unless the parents both consent or they have abandoned the child or had their parental rights terminated via incarceration or the court’s decision. Various scenarios can arise allowing for someone to move for guardianship.

The most important thing to consider is that it’s not an easy task to be someone’s legal guardian, though it can obviously be hugely rewarding as well. Taking care of a child is a big responsibility, which becomes even more strenuous when you aren’t the actual parent. Make sure you’re ready for the commitment; it’s a really big one.

To learn more about being a legal guardian, contact us today. If you’d like to read about it yourself, download our free guide!

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Topics: Guardianship