What Is Legal Guardianship
A legal guardian is more than just a substitute for the parent; they have legal authority over the child from the point of appointment to a point when one of three conditions is met. A Guardianship ends when one of the following occurs: Legal guardianship typically occurs in two ways: through court appointment or by a jurisdictional transfer. The former is the proportion more commonly associated with the term. Generally speaking, a child that cannot be in the presence of its parents due to misconduct or persecution may be placed under guardianship . In such cases, a proximate family member or responsible, mature adult usually fulfills the parental role. By definition, legal guardianship can be defined as a legal and scientific action where a court grants a leastly interest in the person, case, account, action, or property, of another (often a minor). During the guardianship, the legal guardian is responsible for the care of the minor and a judge will monitor the situation, often through progress updates submitted to the bench.
What Are Parental Rights
What do we mean by parental rights? The legal definition of parental rights encompasses a variety of rights associated with the parent and child relationship, including: The level of rights a parent has over their child may vary slightly depending on age and circumstances. However, whether fully intact or diminished by state actions, these rights are generally considered fundamental and, as such, not easily lost. That said, statutes in every state explain when parental rights are lost or curtailed. These statutes often apply to any of the following situations: As such, a certain action, either through a filing with the court or a ruling issued against the parent, is necessary to curtail parental rights, while legal guardianship could come about without any action from the biological parents.
The Difference Between Guardianship And Parental Rights
When comparing guardianship and parental rights, some key differences become apparent. Guardians are not parents and the scope of their authority can vary considerably. However, in some cases, the authority of a legal guardian can override the parental rights of natural parents.
Guardianship of the Person vs. Guardianship of the Estate Guardians operate under the guidance of the Probate Court, and each of the extent of their powers is outlined in the Court order. A "guardianship of the person" gives the guardian the legal right to make certain decisions for an individual who is unable to do so, while a "guardianship of the estate" provides the guardian with legal control over that individual’s financial assets and affairs.
Guardians Responsibilities Guardians can be appointed for children, adults with disabilities, the elderly, and others. A common misconception is that guardians have complete control over the person under their care, and that they can make any and all decisions they wish. In reality, legal guardians have many responsibilities, including:
In some situations, a court may appoint a succession of guardians (for example, for a minor child, both a guardian of the person and a guardian of the estate). When this occurs, the child’s court must essentially approve the process. The duties of the estate guardian do not extend to the guardian of the person, nor do the duties of the guardian of the person extend to that of the estate.
Guardianship’s Relationship to Parental Rights A guardian’s authority supersedes the authority of parents (unless otherwise stated by the Court). Under Pennsylvania law, parents will continue to maintain certain rights to their children, however, until and unless parental rights are terminated or relinquished voluntarily by the parents.
The establishment of guardianship is a separate proceeding from the termination of parental rights. Parents have the right to counter a petition for guardianship of the person, but if the Court decides to grant it, the guardian’s authority will supersede their parental authority.
Termination of parental rights can lead to a permanent lapse in authority. If this happens, a guardian now has a greater authority than that of the parents, making the petitioner more of a surrogate or legal parent than simply a guardian. Whether an individual is acting in a capacity as a guardian of the person or as a surrogate/parent can have far-reaching implications.
Legal Implications of Guardianship As guardians of the person, the appointed party will make some of the same decisions a parent would make. The key difference is that there is a statutory framework in place that outlines what parental authority can be exercised by the guardian and what authority cannot.
All decisions a guardian of the person persists through the extent of their appointment. Under Chapter 58 of the Pennsylvania Code (state guardianship regulations), a guardian must keep in mind the following (and this is without limitation or typographical errors):
Guardians cannot do anything that will harm the incapacitated person or could be harmful to his/her situation. Guardians are prohibited from any type of abuse against children and adults with disabilities. As a guardian of the person, you cannot neglect the health, safety, and wellbeing of the incapacitated individual.
Generally, a legal guardian has the same responsibilities as a parent. Guardians can make the same critical decisions, such as where someone will go to school and how often they will be allowed to visit family (if at all). This differs from other appointments such as healthcare proxy, in which the appointee can only make medical decisions on behalf of that individual when they are incapable of doing so.
Contrary to popular belief, a guardian of the person does not need to be related to the individual they are appointed to care for. In fact, in many cases, appointed guardians are complete strangers to the individuals who they are responsible for. There are few restrictions on whom the court can appoint as a guardian of a person. As mentioned above, someone can be appointed as a guardian of the person and estate at the same time.
Types of Legal Guardianship and Parental Rights Cases
The processes to establish guardianship or secure or terminate parental rights are highly technical and differ greatly from one jurisdiction to another. In this overview, we will look briefly at the steps, documentation and common legal challenges involved in each process.
Legal process for Establishing Guardianship (or Conservatorship). Petitions for Guardianship may be filed in any of the Superior Courts in Georgia. In such a petition, the petitioner must demonstrate that a minor child is without both parents, or that a person suffers from an ongoing and lasting disability that prevents them from caring for their children. A non-parent filing the petition for guardianship over a minor child must show that the parents are deceased, have disappeared, deserted or abandoned the child, or that the parents are unable, for good cause shown, to care for the child. If the disabled adult is unable to participate in the action, the action may be commenced by any other interested person on their behalf. The Probate Court will appoint an attorney to represent any disabled person pursuant to O.C.G.A. 29-4-14(a). Within 60 days after the appointment of the attorney, such attorney shall file a motion for a hearing under O.C.G.A. 29-4-14(b). Upon receiving notice of a hearing date and time, the fiduciary shall mail a copy of the motion; notice of the time and place of the hearing; specified objections; and any order appointing such fiduciary for the other persons entitled to notice under this Code section . Upon receipt of such notice, such persons shall be allowed 15 days in which to file objection in writing to the proposed action or to submit written instructions to the fiduciary specifying what actions to take or refrain from taking in connection with the specific matter described in the motion.
Legal Processes for Securing Parental Rights The process to establish bargained for legal or physical custody or parenting time with a child is called "Legitimation." Under Georgia State law, a child born out of wedlock has no legal rights vis-à-vis his parents unless that child is later legitimately made a child of his biological father. Legitimation is accomplished by two methods. First, the biological father may independently petition the court for legitimation of the child, or the parties may jointly petition the court for legitimation. There is no dispute that a biological mother’s unfitness is sufficient to support an award of custody to the father. She is not entitled to a jury trial if the father enters a proper general appearance and the mother’s unfitness is shown by clear and convincing evidence. If the unfitness of the mother is proven, her parental rights may be terminated. When the parental rights of both parents are terminated, the father may be awarded unrestricted custody, but this generally will not avoid maternal property rights in the mother.
What It Means For Your Family and Child
The implications of legal guardianship and parental rights for families and children can be far-reaching and profound. From an emotional perspective, the termination of parental rights can lead to a lifelong sense of loss and grief for both parents and children. Children may struggle with feelings of abandonment and may have difficulty forming secure attachments with caregivers. Families may experience a sense of shame or stigma associated with having a child in the foster or court system. Financially, the implications can be significant. For parents who experience temporary separation from their children due to legal guardianship, the cost of child care and legal expenses can be astronomical. Additionally, the loss of parental rights often results in a loss of financial support for the child, leaving them reliant on state resources for stability. For adoptive families, there may be costs associated with fees, medical care, and special education services that are not covered by the state. Socially, children in legal guardianship or foster care may find themselves marginalized or stigmatized within their communities. They may face difficulties in making and maintaining friendships, completing schoolwork, and adapting to new environments. Additionally, they may become targets of bullying or harassment from peers due to their unique familial circumstances. As such, it is crucial that families understand the implications of legal guardianship and parental rights termination on all family members – parents, legal guardians, siblings, and extended family – as well as the best ways to support one another through the process.
Where To Get Legal Assistance
Engaging with a legal professional who specializes in family law can bring immense clarity to complex situations. A lawyer with expertise in guardianship and parental rights can help explain the legislation in clear terms, assess your specific circumstances, and explore all potential options with you. They can advise on the application process for guardianship or custody, represent you in making an application to the Children’s Court, and provide ongoing assistance and support throughout the entire legal process.
Consider seeking a consultation through legal aid, if available in your area , or reaching out to any local non-profit or government agencies that specialize in the area of guardianship or parental rights you’re dealing with. Government services may also provide mental health support services for those who are making or navigating the process of filing for guardianship or considering relinquishment, which can help navigate the process through its entirety.
It is common to have heightened emotions when dealing with legal proceedings relating to children and families. However, a good lawyer can assist you in dealing with emotions and anxieties that might otherwise cloud your judgment, allowing you to make confident, sound decisions about what is best for your child and what might be the best next step for you.