The importance of selecting a viable guardian early in a child’s life cannot be understated. In the event a parent passes prematurely or becomes unable to deliver the caregiving needs of a minor child, having a responsible and loving family member or trusted friend ready may prove invaluable. Without someone who has the force of law behind them, your child’s future remains uncertain.
A legal guardianship is not an informal agreement between family members and loved ones. While parents can discuss and agree that a sibling or grandparent would do the right thing in the event of a tragedy or setback, the courts hold sway unless you have a binding determined estate plan in place. That’s why it’s imperative to work with an experienced attorney to create legally-binding documents that ensure the health and welfare of your child’s future. That being said, these are elements of permanent guardianship parents would be wise to promptly consider.
Guardians & Parental Rights
People who do not work in the legal system are often surprised to discover that the family court does not necessarily handle guardianships. In most cases, family court judges decide child-rearing issues such as custody, visitation, and support, among others. Generally, probate handles guardianships because they are more closely related to Last Wills and other aspects of estate planning. So, in terms of guardianships coming into conflict with proceedings such as divorce or parental estrangement, cases are often referred to the probate system.
Although the discussion here remains focused on permanent guardianship, there are many instances when parents or the courts designate temporary status. For example, there are times when a child’s parent(s) are unable to provide care, support, or make consistent decisions due to temporary incapacitation. In such instances, they could transfer authority to their designee until they are able to resume parental responsibilities. In such instances, the parent does not necessarily surrender their primary rights.
Opting for a court-approved temporary guardianship should not be taken lightly by parents. When circumstances dictate that a disability, health condition, or addiction crisis renders a parent unsuitable to handle day-to-day caregiving functions, the court may find that it’s in the child’s best interest to terminate parental rights at some juncture. In such instances, guardianships are converted from temporary to permanent even against the parent’s wishes. That’s why it’s crucial to work with an experienced attorney when agreeing to temporary guardianship.
Making A Temporary Guardianship Permanent
Although temporary guardianships are intended to come to a logical end, sometimes circumstances require change. This may be the case when someone takes on the guardianship believing a parent will recovery from their challenge or condition within a reasonable time frame. Tragically, when parents lose their battle with health and wellness matters, permanence and stability tend to be in the child’s best interest. These are common reasons people petition the court for permanent guardianships.
- The remaining parent passes away due to illness
- The parent(s) has been incarcerated permanently or beyond the child reaching 18 years old
- The parent can no longer adequately care for the minor child
When a guardian wishes to change the court-mandated designation to a permanent one, there are procedural steps that must be undertaken. It’s essential to work with an experienced attorney in such matters because the court bureaucracy can be difficult to negotiate, and missteps often prove costly.
Start by scheduling an appointment with an experienced attorney to gain insight about what permanent guardianship entails. Before making this extraordinary commitment, it’s important to understand all the rights and obligations that come with it in order to make an informed decision. If you still wish to proceed, these are legal hurdles that will need to be addressed.
Meet Court Requirements
The court’s responsibility in this process is to always protect the child’s best interests. The desires of well-meaning adults run a distant second. That’s largely why Washington State, and many others, set a stringent standard for permanent guardians. These are items required under Washington State’s Certified Professional Guardianship Program.
- Must be at least 18 years old
- Have no felony convictions on your record
- Have no misdemeanor convictions that involve moral deficiencies
- Be of sound mind and a person the court deems suitable
- Demonstrate financial stability and a reasonably good credit rating
Although family members may not be petitioning the court under this specific program, its requirements highlight that you will need to make a persuasive case to a judge.
Gain Parent of Current Caregiver’s Consent
In instances where the parent can no longer raise the child or someone else has a temporary arrangement, a family member or interested third-party can petition to have the temporary order transferred to them and enhanced to a permanent one. One of the ways this pathway can be processed more seamlessly is with the current caregiver’s permission. By securing an affidavit to that effect, the court may be more inclined to grant the petition.
Provide Notice To Interest Parties
Once your attorney has completed your petition and filed with the court, all relevant parties must be notified in a timely fashion. This may include living parents, family members, and pertinent people in the child’s life that may also want to take on the guardian role. Make certain that your attorney has a list of all pertinent family members and potentially interested parties. Failing to complete this procedural step could upend the process or result in civil litigation brought by a family member or person with standing.
Your Day In Court
The fundamental question the judge considers when making someone a permanent or temporary guardian for that matter is whether the legal designation serves the child’s best interest. The judge will weigh a wide range of facts in reaching a conclusion. These may include the following.
- Emotional bonds between the child and potential caregivers
- Ability to provide necessities such as a safe, stable home, food, and medical care
- Financial stability of the guardian candidate
- Educational background and employment history
- Issues involving previous alcohol or substance abuse
- Mental and emotional fitness of the prospective guardian
You can anticipate answering pointed questions asked by the judge or any parties who oppose or have an interest in the petition. Securing permanent status can be something of an uphill battle when competing interests come into play.
What Parents Should Consider When Choosing A Permanent Guardian
In many cases, permanent guardianships are established by parents through estate planning documents. Parents who take such proactive measures understand that they are ensuring their child will be in good hands should they die prematurely or be otherwise unable to provide adequate care.
Ranked among the most significant challenges parents face is making an informed decision about whom to nominate. But by taking time to think through the process and weigh your options, you will be able to select the best possible candidate. These are things to consider.
- Consider Your Core Values: Although you may be immersed in a loving family, child-rearing remains deeply personal. Parents, siblings, and other loved ones may or may not share your core values. Take an inventory about issues such as religion, political perspectives, education, integrity, and other things that truly matter. Then, see who best mirrors your core values and would make a suitable guardian if necessary.
- Multiple Guardian Option: While it may be somewhat uncommon, there are times when the designated guardian becomes unable or unwilling to fulfill the duty. That’s why it’s in the parents’ best interest to include an alternative in your estate planning documents.
- Financial Stability: We live in a world in which financial security matters. A guardian who manages money well may be more likely to sustain a healthy and secure home life for your child. This person may also be asked to manage any assets to support the minor or work cooperatively with your estate’s trustee.
- Speak To Your Family: Having an open and honest discussion about your desire to enlist a family member or loved one as a potential guardian must be treated with care and compassion. Take the time to explain your reasoning in a way that does not slight or otherwise make people feel less than adequate. You are basing the decision on what you perceive as an upbringing most closely aligned with your wishes. It may be worthwhile that while you respect others’ values and abilities, there are specific reasons for your choice.
Once you have reached an agreement with a guardian candidate, it’s vital to follow through with an attorney and make the designation legally binding.
Work With An Experienced Permanent Guardian Attorney
One of the most proactive measures to ensure that your child will grow up in a safe and healthy environment if something happens to you is designating a guardian in your estate planning documents. Giving the right person the ability to make essential life decisions allows you to provide care and comfort, even in your absence. If you have not yet designated a legal guardian or would like to update an existing plan, contact Lilac City Law today.