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How to Obtain Guardianship
To obtain guardianship of a child, you must be granted BOTH physical custody and legal custody by each of a child’s parents or by a court of law. Physical custody is where the child lives. Legal custody is the right to make significant decisions on behalf of the child, including decisions about healthcare and education. If you hold both these custody rights to a child of whom you are not the parent, then you are considered a legal guardian.
Establishing guardianship of a child is a complicated process. The process takes place through the courts, and it usually requires a letter of consent from both the child’s parents.
What if the child’s parents do not consent?
If the child’s parents do not consent to grant you guardianship, it is possible that a court of law may still grant you guardianship if the parents are proven to be unfit. Some of the reasons that parents are found unfit include long-term substance abuse problems, abuse, abandonment, neglect, or felony convictions.
If the parents are found unfit, the judge has a couple of options.
- The judge can terminate the parents’ parental rights. Other related family members will have to be notified and can then step up to request guardianship. The judge will make his or her final determination of custody based on the best interests of the child.
- The judge can grant you temporary or emergency guardianship. You will have guardianship of the child, but only for a limited amount of time. The parents will have the opportunity to petition for physical and legal custody of their child again, once they can prove they are fit.
If the child’s parents do consent to guardianship, does this mean they have given up their parental rights forever?
No. A guardianship only puts the parents’ rights on hold. They can choose to petition the court at any time to terminate the guardianship arrangement. In some states, even if you have guardianship of a child who is not yours, it doesn’t mean you have sole physical or legal custody. You may still have to share physical or legal custody rights with the parents, depending on the circumstances of your case.
How do I make sure a child is mine forever?
To legally make a child yours forever, you need to go through the process of adoption. It’s a much more complicated legal process and, if approved, it will permanently terminate the birth parents’ rights to the child. However, if you are receiving any child support payments from birth parents as a guardian, adoption also terminates the birth parents’ responsibility to make these payments.
The laws governing guardianship, custody, and adoption vary by state. Consider contacting an experienced family law attorney in your area if you want to become the guardian of a child who is not yours by birth.
TalkingParents blogs are for informational purposes only and should not be construed as legal advice. Always consult with a qualified attorney regarding legal matters.