How to Get Guardianship of a Child That Is Not Yours

You must be granted physical and legal custody of a child that is not yours in order to obtain guardianship.  

• 2 min read
• custody
• family law

To obtain guardianship of a child, you must obtain both physical and legal custody. Physical custody pertains to where the child lives. Legal custody is the right to make significant decisions on behalf of the child, including choices regarding healthcare and education.

If you hold both physical and legal custody rights to a child of whom you are not the parent, then you are considered their legal guardian. However, establishing guardianship of a child is a complicated process. It takes place through the courts and 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 giving you guardianship, it is still possible that a court of law may grant it to you. This is usually the case 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:

1. The judge can terminate the parental rights. Other relatives 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.
2. The judge can grant you temporary or emergency guardianship. You will have guardianship of the child, but just 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 consent to guardianship, does this mean they have given up their parental rights forever?

No. A guardianship only puts the parental rights on hold. The parents may 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 child’s biological parents, depending on the circumstances of your case.

How do I make sure a child is mine forever?

Legally, you need to go through the adoption process. Adoption is 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 the 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.