When does a child need a guardian?

When should a child have a guardian appointed?

The parents are the natural guardians of a child.  The law assumes parents are the proper guardians of a child.  Appointing someone other than the parents to be guardian for a child is a drastic step that is not taken lightly.

A guardian will be appointed when the parents of a child die.  In this tragic circumstance, whether to appoint a guardian is straightforward.  When parents pass away the focus will be on who should be the guardian, and not if there should be a guardian.

But what if the parents themselves are unable to care for a child?  A guardian can replace parents as guardian for a child when a judge decides the parents are unable, unwililing, or unfit to be guardian.

"Unable, unwilling, or unfit to be guardian"

A parent will be replaced as the guardian for a child if the parent is found to be be “unable, unwilling, or unfit.”

A parent can be “unable” to raise a child for many reasons.  The parent can lose the physical or mental ability to care for the child.  The parent may lack the resources. 

Sadly, parents are sometimes “unwilling” to raise their children.  Often families members will step in to be appointed guardian to avoid the child entering the foster care system.

Finally, a parent can be found by the judge to be “unfit” to raise the child.  There is no concrete definition of when a parent is unfit.

"Unfit" to be guardian

A guardian will be appointed for a child if a judge declares the parent(s) unfit to raise the child.  There is no one-size-fits all test to decide if a parent is “unfit” to raise a child.  When there is no clear rule, lawyers look to other cases to see what factors have convinced a judge to appoint a guardian.  Some examples are as follows:

  • stability (of lack of stability) in a parent’s life;
  • the care the parent could provide on a daily basis;
  • the environment in which the child would be raised;
  • the effort the parent has made to provide financial support; and
  • the parent’s mental health.

Whether a parent is unfit must be based on current circumstances.  The parent must be unfit at the time of the guardianship hearing.  Past conduct can be used, though, as evidence of unfitness.

Whether a judge would declare parents “unable, unwilling, or unfit” to be guardian depends on the circumstances of your case.

Questions about a guardianship or conservatorship? 

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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.