What is Legal Guardianship?
Legal guardianship is a specific form of guardianship that relates to an individual’s parental rights and responsibilities toward a child. The legal definition states that: A guardian of a minor is a person appointed, either by a will, by the court, or by law, to take care of the person and to manage the property, or both, of a minor, during his minority. The responsibilities of a legal guardian encompass making decisions about a child’s health care, education, and residence, and they extend for an infinite period of time or until legal emancipation occurs or another arrangement is approved by the court . While the concept of legal guardianship exists among minors, it can also apply in the case of an incapacitated adult. According to the New York State Unified Court System, legal guardianship comes into play when someone who has custody of a child loses their parental rights, perhaps due to injustices against the child. Legal guardianship replaces biological parents with a responsible adult charged with protecting the child’s best interests.
Are all Parents Guardians?
In Texas, parents act as their child’s legal guardian merely by virtue of being the parent. If you are the biological or adoptive parent of a child, you are automatically the legal guardian of that child, unless you (the parent) do not have the authority to do so. For example, a court may have terminated the parents’ rights to be the child’s parent, or the child may have a court appointed managing conservator who is not the child’s parent. In those types of situations, the parent is no longer the legal guardian of his or her child, but the parent will still have the right to be the child’s parent (i.e. controlling decision making in the child’s best interest and providing exploration, supervision, etc.) for purposes of medical decisions, school decisions and control over the child’s general welfare. But just because a parent will always be the parent does not mean that the parent will always be the legal guardian.
While your child is a minor, you will almost always have the authority to take care of them, make decisions on their behalf, and perform any other functions that gives your child the protections they need. However, when your child becomes an adult (i.e. age 18), most parents are no longer that child’s legal guardians. Parents can petition an adult court seeking a declaration that the adult child is legally incapacitated. If an adult court finds that your adult child cannot take care of themselves, your adult child will remain your child, but you will need to become legal guardians to continue to make decisions for them and take care of them.
A Parent’s Legal Guardian Rights
Parental rights can cover a wide range of issues dealing with children, and legal guardianship is no different. The parental guardian’s legal rights cover medical, educational, and financial decisions in California.
Legal guardianship grants parents exclusive legal rights. Parents can make big decisions about the child’s education, finances, and healthcare. If the other parent is physically or emotionally incapable of making legal decisions about these aspects of the child’s life, the parent guardian can assume responsibility for the other parent.
As the legal guardian, the parent has exclusive legal rights to make educational decisions for the child. This includes enrolling the child in public school, private school, or homeschool, whether to give consent to perform standardized testing, provide imperative information to school officials, or request an assessment for disabilities.
The parent guardian has the legal authority to make treatment decisions for the child if he or she is severely injured or suffers from a chronic condition. The parent guardian has the legal right to grant drug and alcohol treatment to the child, even if the other parent disagrees.
The parent guardian has five legal financial rights regarding the child. The parent guardian can:
Parents have legal financial rights when the other parent guardian or another person pays child support directly to the parent guardian for the child’s benefit. The parent guardian can increase or decrease the amount of child support without written permission from the other parent.
Parent guardianship is different than an informal guardianship. Even if you have sole custody over the child, you do not have full legal guardianship over the child.
Parent Guardian Duties
As a legal guardian, a parent is legally responsible for the care and supervision of the child who has been placed in their care. In medical, educational and government matters, the guardian’s relationship with the child is effectively the same as if the parent were directly controlling the child’s legal affairs.
Since the custody greats the parent full power over the care of the child, it also means that the parent is legally and financially responsible for providing for the child. The legal guardian, therefore, must ensure the child’s welfare at all times. A parent guardian is expected to ensure proper food, shelter, clothing, education and medical treatment are provided, and any conduct that jeopardizes the child’s wellbeing or safety can open them up to legal implications.
Guardians and Family Law
When a couple gets married, they assume the responsibilities of parenthood. As parents share responsibilities over a child, they also share legal guardianship. Additionally, whether naturally or through adoption, a child or children are under legal guardianship of their parent until age 18. If a child’s parent passes away, the surviving parent is not automatically granted custodial rights. Instead, the deceased’s legal affiliation to the child must be determined through the local court system. When a parent is not able to care for their child, emotional and financial factors come into play. That is why family law differs when a guardianship agreement is part of the equation.
Guardianship and Custody
When a couple separates or divorces, they will have to establish a new custodial arrangement that allows for protection of a child. This arrangement can also affect how the property of an individual and their child is managed. Whether or not an agreement is written as a testamentary disposition or inter vivos, the court must still be involved if minor children are involved or referenced. Unlike prior agreements, this goes beyond the concept of guardianship. The family law aspect of this establishes a new arrangement based on the basic legal obligations of a parent to their child. Parentage, consent, and surrogate rules all have to be adhered to along with the maintenance of healthcare, education, protection, and general wellbeing of a child.
Succession
Not to be confused with inheritance, a guardianship agreement can impact how property is inherited. Guardianship refers to the period in time that a child is under the care of an adult. Succession defines the legal process in place that focuses on the transfer of property ownership to beneficiaries. State law regulates the transfer of assets of a person in cases where a trustee is appointed or a court appoints a guardian. Factors such as consent , duration of guardianship and who is acting as guardian can all be included in a new agreement that supersedes that of a parent. Meanwhile, retainers, annuities, trusts, and disposition planning all work closely with succession.
Guardianship and Divorce
Every divorce agreement comes with its own complexities. This is especially true for those with children, where a custodial arrangement will have to be established. If a couple gets divorced and shares a child, this arrangement may or may not be established in the presence of a child. However, the proceedings are fairly rare even though they have to be applicable under a strict legal framework. A relocation overview is usually requested by the court to determine custody arrangements. This allows the court to decide if a parent can or should relocate without the child. Meanwhile, standard visitation rights and division of in-home assets also factor into the life of the child.
Divorce & Adoption
A divorce can also provide the opportunity for a new guardianship arrangement. If a couple has been divorced and either of them meets the profile of a surrogate, guardianship can occur. The court reviews the application of parentage by consent. When domestic partners or biological parents are no longer living together or it is revealed that one parent is unable to fulfill their obligations as they relate to a child, a new arrangement will have to be completed. The only difference with guardianship relative to divorce is that the circumstances of a child’s care may or may not be changed.
Guardianship for Special Conditions
There are some circumstances in which parental guardianship either complicates the legalities of guardianship or fails to address them. Some of these issues include situations in which the appointing individual is a relative, not a biological parent or a father who claims to be the biological parent but has no verifiable paternity over the child in question.
Unusual circumstances can include those in which parents are not married to one another, especially if they have multiple children with different fathers and/or mothers.
There are instances in which a third party may ask the court to award citizenship and travel rights to a specific relative if one or both parents has died or will otherwise be unable to provide basic care for the child.
All of these circumstances may lead to multiple guardianship applications or divisions of guardianship for siblings or other family members. It is imperative that you enlist the help of an attorney who has a solid understanding of the laws surrounding guardianship in order to keep your legal affairs consistent and simplified.
How to Secure Guardianship When Needed
If parents need to take further legal steps to confirm guardianship, it’s often because the child has special needs or special circumstances. This can include situations involving multiple co-parents, or parental death.
In some of these situations, the parent will have to file a petition with the court. In this case, parents are seeking the assistance of the court to determine guardianship, either in a broader appointment of a guardian or to challenge another party’s notion that they should be the guardian of the child. These proceedings in front of a court are sometimes fairly non-contentious. In other situations, such as if there’s concern about the person proposed as the guardian, the process can be adversarial. Then again, in situations with multiple guardians, such as divorce , the child’s best interest must be the primary consideration. In these situations, the court doesn’t just appoint the biological parents as guardians. The court can appoint one or both parents along with someone else the court decides is suitable. It can also appoint people from agencies, charities, or other interested parties. While the court will most often appoint parents (and do so unless a petition is filed otherwise), they’re not the only option the court has for guardianship and it’s an important distinction to have a family lawyer if you need to go in front of the court for custody purposes. Ask any Houston attorney that deals with family law: These situations are complex and proceed in different ways; if you need to go before a judge your rights are a lot better protected with an attorney as opposed to going solo.