Guardianship of a Child

Answers by
St. Louis Child
Guardianship Lawyer
Tim McCurdy

Guardianship of a Child

Has disaster taken parents away from their children?  Are a child’s parents unable to care for their child?  You may need to pursue a guardianship of the child.  Following are answers to some of your questions about obtaining guardianship of a child.

What is guardianship of a child?

Guardianship is the court process where a judge appoints someone to make decisions for a child.  A guardianship can be appointed when the parents passed away.  A guardianship can also be entered when the parents are found to be “unfit, unable, or unwilling” to care for the child.  For guardianship purposes, a “child” is anyone who is under eighteen years old.

Do parents need to be appointed "guardian"?

Parents are considered the natural guardians of their children.  Parents do not need to obtain appointment as a guardian to care for their children.  A guardianship for a child will only be entered when the parent(s) are unable to fill that role.

Guardianship of a child v. Conservatorship of a child

Missouri separates decisions for the child’s well-being and for managing the child’s finances.  A “guardian” makes decisions for the child’s well-being.  The guardian decides where the child will live, go to school, and medical treatment.  If the child has any assets, the court will appoint a conservator.  A conservator makes decisions regarding finances.  For example, if a child’s parents die and the child receives an inheritance, the conservator would manage the money.

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When is guardianship necessary?

A guardianship for a child is primarily necessary in two scenarios.  First, if the child’s parents die a guardianship will need to be appointed.  Second, if the parents are unfit, unable, or unwilling to care for the child a guardianship will be appointed.  For example, the parents may have drug abuse problems that prevent them from caring for the child.  A guardian can also be appointed if the child is abandoned.  A conservatorship will only be necessary if the child has assets.

How do I get guardianship of a child?

Obtaining guardianship of a child involves filing a petition for guardianship in the probate court or the family court.  The law assumes parents are the natural guardians of their children.  In the guardianship proceeding the judge will decide if the parents are unable to care for the child.  The judge will also decide who should be the guardian for the child.  Once the judge decides the parents are unable to be the guardian, the judge will choose a guardian based on the “best interests of the child.”

Who can be appointed guardian of a child?

The court assumes the child’s parents are the proper guardians for the child.  Once the judge decides the parents cannot serve, the judge is free to appoint whoever the court believes would be the best guardian for the child.

When a child’s parents pass away the judge will look to see if the parents had a will.  Parents can use a will to nominate someone to serve as a guardian for their children.  The judge will give preference to this nomination.  The will acts as the parents telling the judge who they want to care for their children when they cannot.  The judge will still act in the best interests of the child, but the judge will follow the parents’ wishes if possible.

When choosing a guardian, certain safeguards are in place to protect the child.  For example, someone seeking guardianship must submit to a background check.  This includes a criminal background check and a search of the child abuse and neglect registry.  The courts will also require a home study of the potential guardian.  The home study determines whether the guardian has a suitable residence to raise a child.  The judge will also appointed a guardian ad litem to investigate the potential guardian.  If a conservatorship is necessary, the potential conservator will need to provide a credit history report.  The conservator will also be required to post a bond.  Obtaining a bond requires the potential conservator passing a credit check.

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How does a child guardianship case work?

A guardianship case begins with the filing of the “guardianship packet.”  This includes a guardianship petition.  This petition states why you believe the child’s parents are unable, unfit, or unwilling to serve as the natural guardians of the child.  The petition also states who you believe should be appointed as the guardian.  If a conservatorship is necessary, this will be included in the same petition.

In addition to the petition, you also need to provide background information about yourself, the child, and the child’s parents.  You will need dates of birth, Social Security numbers, and addresses.  You also need to provide financial information for the child, if any.  You must also indicate you have requested a home study.

An important part of the “guardianship packet” is the consent of the parent.  A guardianship proceeding will go through easier if the parent(s) consent to the guardianship.  The court naturally wants to protect the rights of a parent to be the guardian of their child.  When the parent has signed a written consent to the guardianship it removes a potential obstacle to guardianship.  Naturally, the decision for a parent to sign the consent form can be a difficult one.  Obtaining the consent of the parent can be one of the most difficult, and the most important, parts of a guardianship proceeding.  Guardianship can be (and often is) granted without the consent of the parents.  Having this consent, though, will help your case.

Once you file the petition, the clerk will review it for completeness.  If complete, the petition will be set for a hearing.  Depending on the county, this will likely be 45 to 60 days out from when the petition was filed.  This time is necessary for you to complete the home study.  You also need to complete the background check.

This time is also necessary for the petition to be served.  Parents have a right to notice if a petition for guardianship has been filed.  Service can be obtained in three different ways.  When the petition is filed, a summons will be issued.  The sheriff’s department will attempt to serve the petition.  Alternatively, you may need to request a “special process server” to serve the petition.  The special process server will cost more than the sheriff.  Since you are hiring the process server personally, the process server will make as many attempts at service as needed.  By contrast, the sheriff may make only one attempt to serve the petition.

If personal service cannot be obtained, service can be made by “publication.”  Service by publication involves posting a notice of the hearing in a legal publication.  The notice must run once a week for several weeks before the hearing.  Before service by publication, you will need to show the court that you attempted to serve the person personally.  Service by publication will add time and cost to the process.  Once service by publication is completed, though, it is the same as if you served the person personally.

Where do I file for guardianship of a child?

Guardianship for a child can be filed in either the probate court or the family court.  The probate court specializes in guardianship cases.  You may choose the family court, though, if there are other family court issues involved in the guardianship (such as a divorce).   The guardianship petition is filed in the county where the custodial parent resides.  This may not necessarily be where the child is actually living at the time the guardianship petition is filed.

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What can I expect at the guardianship hearing?

Once service is complete, the home study is done, and the background checks cleared, the court will hold a hearing.  Guardianship hearings are normally “closed” proceedings.  This means the public is not allowed in the courtroom.  Only those individuals directly involved in the case will be allowed in the courtroom.

You will be seated next to your attorney.  The guardian ad litem will be there to report to the court.  The parents also have a right to be at the hearing.

The court will announce the case.  As the petitioner, you have the burden of proving a guardianship is necessary.  Since it is your burden, you go first.  Your attorney can present documents to support the need for a guardianship.  You can also present evidence on why you should be appointed guardian.  You will almost always be called to testify.  You will be asked about the child’s circumstances.  You will need to show why the parents cannot be the guardian.  The guardian ad litem may ask questions.  The judge may also ask you questions about the child, the parents, and yourself.  If anyone is contesting the guardianship, they can ask you questions.  They will also have a chance to present evidence.

The guardian ad litem will present a report to the court and make a recommendation.  If the guardianship is not contested, the judge might grant the petition while you are in the courtroom.  If the guardianship is contested, or if there are any outstanding issues, the court might take the petition “under submission.”

If successful, the court will enter a judgment.  The judgment of guardianship will declare that the child’s parents are unable, unwilling, or unfit to serve as the guardian for the child.  In addition to the judgment, the court will issue letters of appointment.  The letters of appointment designate you as the guardian for the child.  The letters of appointment are evidence of your guardianship.

What are the powers of a guardian for a child?

Once you receive the letters of appointment, you will have custody of the child.  The letters of appointment are proof of your guardianship.  As the guardian, you can enroll the child in school.  You can place the child in daycare.  You can make doctor appointments, and make decisions about medical treatment.  As the guardian, you can make the same decisions a parent would make for the child.

What happens after I am appointed guardian?

When the court enters a judgment of guardianship, the court is taking ultimate responsibility for the child.  The guardian is appointed by the court to act in the best interests of the child.  The court monitors the guardian by requiring annual status reports.  The guardian is required to update the court on the child’s address and living circumstances.  A conservator is required to notify the court of certain expenditures.  The conservator may need to obtain court approval before taking certain actions.

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How does guardianship end?

A guardianship of a child ends when the child becomes an adult.  For purposes of guardianship, the child becomes an adult when he or she turns 18.  A guardian can resign.  This will only be effective when the court accepts the resignation and appoints someone else as the guardian.

In cases where the child has been removed from a parent, the parent can petition the court to end the guardianship.  To do so, the parent will need to prove to the judge that the parent is now fit and capable of caring for the child.

Alternatives to guardianship of a child.

A guardianship can be a long and emotional process.  You may consider alternatives to guardianship.  For example, a parent can give a power of attorney to someone else to care for a child.  The power of attorney can enable someone to register a child for school and make healthcare decisions for the child.  A power of attorney is not a complete substitute for a guardianship.  Missouri law requires certain limitations on the power of attorney.  Most significantly, the power of attorney can only last for one year.  The parent would need to renew the power of attorney each year to remain effective.

Alternatives to conservatorship of a child.

A conservatorship can be an expensive way to manage a child’s inheritance.  Especially if there is no need for a guardianship, alternatives should be considered.  For example, if a grandparent has left money to a child under 18, legally the belongs to the child, but the child cannot manage the money.  Likewise, the parents cannot simply take the money to manage for their child.  Transfers can be made to a child under the Transfer to Minors Act.  This law allows money for the child to be placed into a restricted account.  The parent is able to manage the money in the account, so long as the parent acts in the best interest of the child.  Once the child turns 18, the money will go directly to the child.

Guardianship versus Adoption

Becoming guardian for a child gives you many of the same rights and responsibilities of the parent.  Guardianship does not terminate the rights of the parents, however.  Likewise, guardianship is not the same as a legal adoption.  Although you are caring for the child, the child is not legally “yours.”  Pursuing an adoption of the child requires a termination of the parental rights.  This requires a separate legal proceeding.

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St. Louis Child Guardianship Lawyer Tim McCurdy

Guardianship requires a lawyer who will listen to you.  You need a partner to help guide you through the complex guardianship process.  Tim McCurdy will take the time to learn about your unique situation to help look for a solution.

LASHLY & BAER, P.C., is a mid-size Missouri law firm with deep roots in both Missouri and Illinois. As a full-service firm, we have developed a very diverse and extremely loyal base of local, regional and national clients.

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