While guardianship can broadly apply to anyone who can’t care for themselves, it’s most often associated with the care of a minor child. Legal guardianship over a child is a situation in which someone other than a child’s biological parents are in charge of their care.
A legal guardian can be anyone, including the following:
- Relatives (a child’s aunt/uncle, grandparents, adult siblings, etc.)
- Friends of the family
- Someone who is suitable to raise a child
Sometimes confused with child custody, guardianship is a matter decided by the guardianship court, as opposed to a family court. There are specific situations that can lead to the formation of a guardianship, which we’ll describe below.
1. The Child’s Parents Are Deceased
If both of a child’s biological parents die before the child turns 18 years old, then a legal guardian must be appointed to provide care. In an ideal scenario, the last living parent created a will that described their wishes for guardianship, particularly who they wanted to be their child’s legal guardian.
If no such arrangements were made, or the chosen legal guardian is unwilling or unable, then a guardianship judge will consider petitions for guardianship from relatives or place the child in a foster home.
2. The Child Is Living Among Substance Abuse
When it comes to any issue concerning a child, the courts’ primary concern is the safety and best interests of the child. If someone is aware that a child is living in an unsafe situation because of a parent’s substance abuse, then a guardianship may be in the child’s best interest.
The allegations of abuse will be investigated and the degree to which someone is using drugs and alcohol will be considered. In some cases, guardianship may only be temporarily granted while a parent completes a rehabilitation and education program.
3. The Child Is Exposed to Abuse
By a similar token, if someone becomes aware that a child in their family or community is being abused – or is witnessing the abuse of someone else or an animal in their household – then a guardianship may be in the child’s best interest.
When a child is removed from an abusive situation, they may become a ward of the court until a suitable family is found to provide care. Unless someone who knows the child and can raise them petitions for guardianship, that can mean placing the child in the foster care system until they are adopted by a stranger.
4. The Child’s Parents Can No Longer Provide Care
Parents must be able and willing to provide basic care for their children. This means affording basic necessities like safe housing, food, and clothing. If a parent is unable to afford these things, a legal guardianship for their children can be sought.
Guardianship can also be a solution to keeping a child with their family when a parent does not want their child or does not wish to care for them. Relatives of the child can petition for legal guardianship so that the child doesn’t end up in the foster care system or adopted into a strange family.