Guardianships by agreement

Posted by on April 13, 2015 in Family Law, Guardianships

Guardianships can come about in several ways, and are brought to the courts for different reasons.  Guardianship over a minor person may arise as a precursor to adoption, as a challenge to a parent’s ability to care for the child, or as a result of an abuse & neglect case.  While it is entirely true that a guardianship proceeding may be the last thing any parent wants to go through, it is important to understand that guardianships aren’t always a negative thing.  When someone other than yourself is granted a guardianship over your child, it may be able to provide the support a parent needs to prevent any further negative consequences, and in turn, lay the foundation for a healthy and successful future for the family.

Each biological or adoptive parent inherently retains full authority over their child.  This is guaranteed by our federal and state constitutions, as well as our state statutes.  A parent does not lose any bit of that parental authority until the Court makes an order as such (or a court’s approval of an agreement).  The basic principle of all guardianships, regardless of how they arise, rests on the finding that a child needs substitution or supplementation of parental care and supervision.  The Court may grant a guardianship to a person other than the parent in order to provide that supplementation of care that the child is lacking.  Sometimes, the courts will order a temporary placement for a child as the result of an abuse and neglect case.  This is particularly unfortunate, as the parent against whom the abuse or neglect claim is found not only risks having their child taken from their everyday care, but also, will have a finding of abuse/neglect against them.  A finding of abuse or neglect can have very serious consequences down the line, including possible termination of parental rights.  If a parent recognizes that they are in need of some additional supports for themselves and/or for their children, it may be worthwhile to explore the idea of a consented-to (agreed upon) guardianship with a family member or close friend that the parent trusts and has a good relationship with the children.  In this context, guardianships can be a good thing for the parent, in that they provide stability to the child, and could act as a delay or altogether preventative measure to DCYF becoming involved and potentially moving forward on an abuse and neglect claim.

Again, there is more than 1 way a guardianship can arise.  It is important that you speak with an attorney at Shanelaris & Schirch, PLLC to understand all of your rights prior to entering into any agreements.