What is a Guardianship of a Minor?

February 19, 2019

What happens when a parent is unable to care for their minor children?  Perhaps the parent has become unfit, or unavailable due to death, abandonment or incarceration.  In these extreme situations, someone can step in and ask the Court to appoint them to become the guardian of the children and be responsible for their care and well being.

 

Is guardianship the same as adoption?

 

No.  A guardian of a minor child is given temporary legal responsibility for the children.   The biological parent does not relinquish parental rights. The biological parents may visit the children. When a child is adopted, the adopting adult is given the same status as the biological parent.  The biological parent gives up all their parental rights to the children.  A guardianship will end when the children become age 18, marry, die, or if the Court determines the guardianship is no longer necessary.  An adoption is permanent.

 

Who can become a guardian?

 

Any adult who is at least 18 years of age and lives in the United States.

 

I am the grandparent.  Can I automatically become a guardian for my grandchildren?

 

No.  In Massachusetts grandparents do not have automatic legal rights to their grandchildren and must follow the guardianship procedure and file a petition with the Court.

 

How is a guardian appointed?

 

The person who wishes to become the guardian must file a petition with the Probate and Family Court.  The petitioner can ask for temporary or permanent guardianship.  The petition must be served along with a citation on all interested parties.  An interested party is the biological parents, any older siblings at least age 18,  grandparents, current guardians, caretakers or anyone with custody of the children. The Court will assign a hearing date to appoint a temporary guardian for 90 days. At the expiration of the 90 days, there will be another Court hearing to determine whether to extend, terminate or continue litigation.

 

Can the biological parent object?

 

Yes.  The parent must file a timely objection with the Court and can present their case at the hearing.   The Court will not automatically appoint a permanent guardian at the first hearing.  The biological parent may consent, at which point, the Court will appoint the guardian without litigation.

 

Guardianship cases involve strict rules of civil procedure and can become complicated when contested.  In some cases, the Court will appoint an attorney for the children or a Guardian ad Litem, to investigate the parties to assist the Court in making its decision.

 

Whether you are seeking to become a guardian, or are the objector to a petition, contact Fleischer Law Solutions for a consultation to assist you with your legal needs.