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How to get guardianship of a child - Avvo

Legal Guardianship

Are you wondering how to get guardianship of a child you love when their parents can’t care for them? States offer a legal process for getting the right to care and make decisions for a child, just as if you were their parent.

Process for getting guardianship of a child

Since guardianship is a court-ordered right, you’ll start by filing a petition with the court asking for guardianship. Your state will most likely have several forms you'll need to complete to begin the process.

These forms will ask you to provide some basic information. You’ll also need to explain why it would be in the child’s best interests for you to become guardian. If possible, include a signed letter or statement from the parents giving their consent.

To grant your request, the judge will need evidence that you should be guardian. They can get that evidence by ordering several things:

  • Interviews with you and any other interested people (the child, parents, anyone who lives with you, etc.)
  • A home visit to be sure you can provide a safe, nurturing environment
  • A criminal background check on you and any other household members

Depending on how many interviews are needed and the cooperation of those involved, this part can take a few weeks or as long as two months.

If the judge does grant you guardianship, you may have to sign an oath accepting the responsibility.

Do you qualify to be a guardian?

In many states, any competent person can be appointed as a guardian. They just have to meet a few basic requirements, which usually include the following:

  • Legal adult (usually at least 18 years old)
  • US resident
  • Not mentally impaired
  • Physically able to care for a child
  • Has not been convicted of a felony involving harm to a child

Courts may also consider information specific to your case, like your relationship with the child and the child’s wishes.

Getting guardianship when the parents object

Courts usually prefer to have the parents’ consent to award guardianship. But in some situations, it’s clearly in the child’s best interest to take them out of the parents’ custody:

Also, if the court has already terminated both parents’ rights, the parents don’t have the legal right to object.

However, other family members can object, and the court can take their concerns into consideration. If this happens, you may need a lawyer to help you argue your case.

Can you get guardianship of a ward of the state?

Yes. The process for getting guardianship of a child who is in the state’s custody is essentially the same as it is for any other child. The main difference is you need the state’s permission, not the parents’.

If you're the child’s foster parent and want to change to guardian, the state is likely to agree if the child is doing well in your home. State agencies generally prefer the most permanent, stable home possible.

Even if the child is in a different home as a foster child, you can still apply for guardianship. But if the foster parents also want guardianship, they'll usually get preference to avoid uprooting the child from an already stable home.

If you have any questions about getting guardianship of a child, talk with a family law attorney who can explain the process and your rights under your state’s laws.

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