Legal Guardianship of a child will see the guardian having legal and physical custody of the child i.e. the child lives with the guardian and the guardian has control over the child.
However, the parent maintains her parental rights - although these rights may be conferred whilst the child lives with a guardian and the guardian thus acts in loco parentis (literally meaning "in the place of the parent") for the child.
In this context the parent(s) are still alive and not as we discuss elsewhere when guardianship is assigned in a will after the parent(s) pass away.
Legal Options when Caring for Minors
There are a number of legal options to consider when it comes to the caring of children.
Take a look at our infographic which gives an overview and also shows:
Our article on this page then goes into more detail for each circumstance.
This page at a glance:
It denotes someone who is legally authorized to care for the person and/property property of another person, called the ward.
A ward may also be a minor child whose parents have died and he is not capable of looking after himself and his interests, or it may be an elderly person who is declared legally incapable of looking after his affairs.
Sidebar: Our page on adult guardianship also explains the differences between a guardian, conservator and curator and the legal avenues that can be pursued to take care of an elderly parent, for example.
You must consult with a guardianship attorney if you consider granting permanent guardianship of your child to another person:
Apart from the legal requirements for a guardian, as a parent you should also consider the following when deciding to voluntarily award legal guardianship to another person:
In short, will the guardian take care of the child as his own - or as you would if you could?
A person or persons who are appointed as guardians are obligated to responsibly take care of a child's personal and property interests and to aid or represent the child in legal matters.
To qualify as a guardian a person must:
The duties and responsibilities of a guardian:
A guardian may need financial assistance from the parents to take care of the child. If the parents do not contribute willingly, then the guardian can petition the court for child support.
Generally speaking permanent guardianship cannot be terminated once it has been granted by the court and will last until the child reaches the age of majority, which is 18 years in most jurisdictions.
Having said that, it is not impossible to terminate guardianship, but that can only be done through a court order.
The assistance of a guardianship lawyer will be of immense help to you to complete the required forms and provide the legal reasoning and proof that such a termination will be in the best interest of the child!
If, as a parent, you want to petition to the court to end a guardianship order, your application will be strengthened if you can furnish the court with the following evidence:
Incidentally there are other instances when a guardianship will end:
In the examples given above it would mean a minor child is emancipated i.e. becomes an adult before the age of maturity (normally 18 years of age). Thereafter the Guardians (applicable to parents too) will not have custody of the child anymore and equally have no control over the child.
The child must file a petition for emancipation in the court which is applicable to his/her circumstances. It is important to note that this step is not to be taken lightly and may not even be an option in the state/province/country where the child lives.
If the petition is successful (the child meets and maintains a number of legal requirements), the child will get a declaration of independence from a judge.
One of the requirements would be that the teenager can support himself financially. When that is no longer the case then the court can cancel the emancipation.
A court may order the removal of a child from his parent(s) if it's in the child's best interest to do so. This will typically happen if an interested party (e.g. a child protection agency) submits an application to the court for such an order, along with evidence showing that the child's best interests are continually not being met.
This is the important bit: In this instance the parents retain legal guardianship and their rights and responsibilities are not automatically terminated.
The court recognises the needs of the child to be permanently settled and hence may intervene if parties bring application to the court to terminate the rights and responsibilities of the parent(s) and adopt the child.
Custody of a child is typically determined in a divorce situation. The child will live with one parent who will have the right to make important decisions on the child's behalf.
Sidebar: It is unfortunately true that there has been an increase in parental child abduction or even abduction by other family members. There is legal recourse and assistance available, for a parent whose child has been abducted across international borders.
It is important to know: A parent cannot give legal custody of a child to another person. Only the courts can do that.
There are two distinct circumstances when it will be relatively easy for grandparents to get custody of a grandchild:
However there may be circumstances where the grandparents seek court intervention in order to get custody of grandchildren. For example:
Even in view of all the above, the court may still not necessarily award custody to the Grandparents. Other close family members may also petition for custody.
Furthermore, the Grandparents may be frail and elderly or may not have financial means to provide proper care for the child.
It would count greatly in favor of grandparents seeking custody if the child has already been living with them for some time and wishes to stay there. The court would consider such stability and bond with the grandparents as being in the best interests of the child.
The refrain "best interests of the child" runs through all matters affecting the care of children, whether it is in guardianship, foster care or custody.
There is as always huge variance in laws governing custody of children. Grandparents must consult with a child custody attorney in their specific area to assist them in this process.
If the biological mother is not of legal age and unmarried, then her parents (or legal guardians) are also the guardian of her child i.e. the grandchild.
The exception to this rule would be if the biological father of the child is of legal age, in which case he may automatically have guardianship, or acquires guardianship through a court order.
If parents cannot take care of children on a full-time basis, they can enter into an agreement to give rights and responsibilities to another adult (e.g. grandparents) with whom the child will live. This adult (grandparent) will make day-to-day decisions regarding the care of the child.
However! The mother and father do not relinquish any of their rights and responsibilities.
The rights of a parent include the right to keep contact with, and act as guardian for a child.
The responsibilities of a parent include caring for and contributing towards the maintenance of a child.
And grandparents do not have these rights whilst the children are living with their parents.
Take a look at the following examples:
Therefore, grandparents need to understand that they do not have inherent or automatic right of contact or access to grandchildren, nor do they automatically have responsibilities for a grandchild.
Having said all that, the court may interfere if the grandparent(s) can show the court that refusal to access was not in the best interests of the child. Thereafter, should they have a visitation order and are denied access to the child, they do have the right to have the order enforced.
Power of Attorney for a Child
Giving grandparents Power of Attorney for a Child may be a better solution for some families!
The parent can make the authority as broad or as limited as he/she wishes (i.e. general or specific powers of attorney) and can revoke it at any time. Take a look at our guidelines and the applicable legal documents to see if it can work for you.
It may be called boarding-out in some countries, notably the United Kingdom and Australia. In Canada the terminology is being a ward of the State.
Family-based foster care is a short-term arrangement until permanent placement can be made. In this context "family-based" is used in the broader sense of the word and does not necessarily mean being related to the child.
In foster care the responsibilities and rights of biological parents are not completely terminated. Moreover, the foster parent does not automatically become a legal guardian.
The ideal situation, most often, is for children to be fostered within their own or extended families with whom they have a kinship.
In formal foster care placements, financial assistance is provided by the State in the form of social grants.
However, if a child has an income e.g. testamentary trust fund or an insurance policy that paid out on the death of the parents, then it is unlikely that a state foster care grant will be paid.
In a formal foster care placement, the foster parents are eligible, and may be given a preferential option, to adopt a child when adoption becomes available. The courts must consider the application in recognition of the bond that may exist with the child and the care the foster parents have bestowed on the child.
In an informal foster care or temporary guardianship situation, there will not be any foster care grants from the State.
A curator is a person who is legally appointed to take care of the interests of an underaged or mentally incapable person who is unable to do so himself.
Note the proviso: A person may have an appointed curator because he is not capable of managing his affairs. However, this does not necessarily mean that he is mentally incapable of, (for example) entering into a marriage contract.
It is very important to consult with a guardianship attorney in order to obtain legal advice on whether this agreement should be registered with, or made an order of, the applicable court.
There are a number of courts where a party can bring application e.g. children's court, divorce court etc. and the guidance of a guardianship lawyer is crucial.
I, the undersigned _____________________(full legal names) do hereby make oath and say that:-
I am the grandmother of the minor identified as
________________________ (full names, date of birth, age) who is under my care and custody.
I am mentally competent and have no judgements entered against me which may preclude or disqualify me from guardianship.
I am authorized to act and legally execute agreements or applications on behalf of the minor's parents.
As verification I annex hereto, marked "A" a true copy of a Power of Attorney executed by the parents appointing me as agent and attorney for the minor.
This affidavit is made for the purpose of:
I attest to the foregoing statements which may be relied upon for all legal intent and purposes.
SIGNATURE and FULL LEGAL NAME OF DEPONENT
DULY SWORN TO AND SUBSCRIBED BEFORE ME, on this _____ day of
at ______________________ State of ______________________.
My commission expires: _____________________
Do not sign the affidavit beforehand. You will do so in the presence of a Notary Public or Commissioner of Oaths, whichever the case may be in your jurisdiction.
Alternative wording for the following numbered paragraphs in your Affidavit of Legal Guardianship:
You may be otherwise related to the child. Or you may be a friend
or professional acquaintance of the parents. Then identify
yourself as such: e.g.
"I am the sister of", or
"I am the legal guardian of".
4. We used a Power of Attorney as verification but you may attach any document that authorizes you to act on behalf of a child e.g. court order granting you custody.
5. Simply state the reason for your having to submit an affidavit
of guardianship, for example:
* Application for enrollment at a school or other institution
* Application for a study loan / relief / bursary
There are a number of factors to consider regarding the legal guardianship of a child and which option would be best for all interested parties, but most of all, which option would be best for the child.