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The goal of all custody cases is to determine the custody situation in the child's best interest
. In circumstances where both parents are deemed unfit or have passed, adult siblings can take action to request guardianship of their sibling.
If you hope to gain guardianship of your sibling, it is best to contact a legal professional and get guidance about the laws in your area.
While legal professionals generally prefer for children to maintain relationships with both parents, this is not always possible. When determining the custodial arrangements for children, judges try to create living arrangements that will meet the “ultimate goal of fostering and encouraging the child’s happiness, security, mental health, and emotional development
.” Amongst others, some of the leading factors to determine the best interest of a child include:
- The physical and mental health of the parents or potential guardians
- Stability of a home environment
- Patterns of domestic violence or substance abuse
The courts will take a holistic approach to evaluate the available options and determine the people with whom the child will be able to live. Siblings requesting guardianship will need to demonstrate how their home will provide the best possible life for a child. This can include their ability to provide shelter, food, clothing, education, medical care, and stability
To gain a full understanding of your home and fitness for custody, the court may also arrange interviews, home visits, and ask for documentation that supports your claim.
In some cases, the younger sibling may be asked for their opinion or personal preferences regarding their living arrangements.
What Makes a Parent Unfit?
The exact definition of an unfit parent varies by state. A parent might be unfit if they have a history of abuse, neglect, or inability to care for a child. A parent with substance abuse problems or one who has abandoned the child in question may deemed unfit by a court.
In the unfortunate case of both parents’ death, an adult sibling can petition the court for custody of their sibling.
Custody is the care of a child, while guardianship refers to the non-parental care of a child. A guardian is a person who is not the parent but takes responsibility for the care of that child.
In cases when one parent has legal custody of a child, a non-parent can have physical custody. There are some common child custody
questions that can impact both guardians and custodial parents.
To receive guardianship of a child, parents must voluntarily give up legal custody, or it must be revoked by a judge. The suspension of legal custody can be temporary or permanent and can only be determined by a judge.
Establishing Sibling Guardianship
According to Find Law
, siblings need to petition the court to become a guardian. The older sibling seeking custody needs to be eighteen, and the younger sibling must be under eighteen. It will be useful to learn whether your state has a hierarchy when it comes to assigning guardianships to determine if other family members qualify.
Some qualifying factors
for guardianship include the attachment between the child and the potential guardian, and whether the guardian is willing and able to provide for the child.
When a petition is file with the court, there will be a hearing
to review the safety and fitness of the potential guardian’s home. The hearing will also ensure that the prospective guardian understands the role that they are undertaking amongst the responsibilities associated with guardianship.
Responsibility of a Guardian
There are many responsibilities that a guardian must be able to uphold,
including the ability to provide care, supply food and shelter, give the minor access to medical care, and ensure the child has access to education.
The duties of the guardian will vary by state. For example, in California
, guardians must be able to manage the child’s finances and even manage parent visitation if the court has granted that. There will be regular check-ins and home inspections for the guardian to make sure that the child is in a good home.
Resources for Guardians
There are government and community resources available to assist guardians as they navigate their duties and new role.
TalkingParents recommends that prospective and new guardians contact legal professionals in their area to help them navigate the guardianship process in their jurisdiction.
TalkingParents blogs are for informational purposes only and should not be construed as legal advice. Always consult with a qualified attorney regarding legal matters.