All states have laws providing for the appointment of a guardian to care for a minor child when the child's biological mother is unable to do so and the father is also unable or unavailable. The guardian is appointed by court order and is subject to court supervision. Although the mother may nominate a particular adult to act as guardian for her child, the court makes the final decision on who is appointed. Any change in the guardianship must also be done through the court.
Guardianship vs. Parental Rights
A mother or other concerned adult may petition the court for appointment of a guardian for her minor child; however, the establishment of a guardianship does not terminate the mother’s parental rights. In situations where she cannot care for her child, perhaps due to incarceration, drug addiction or other serious illness, a guardian assumes responsibility for providing the child's day-to-day needs, schooling and necessary medical care. The mother's parental rights remain intact and co-exist with the guardian's duty to care for the child. For example, the mother is entitled to reasonable contact with the child during the guardianship.
Guardian Power and Duties
State law specifies what powers the court may grant to the guardian over a minor child. For example, Section 524.5-313 of the Minnesota Statutes states that the guardian's powers include deciding where the child will reside; ensuring that the child's personal comfort and needs are met for food, shelter and clothing; consenting to medical service for the child; and deciding the type of education the child will receive. State law further requires that guardians make periodic filings with the court. In California, for example, the court mails a Guardianship Status Report annually to every guardian, and this form must be filled out and returned to the court. Additional filings may be necessary if the guardian is handling money received for the child's benefit, such as public assistance.
Change of Guardian
A child's guardian can only be changed by court order. The child's biological mother may petition the court for a change; but the petition must affirm that the current guardian is not adequately caring for the child or has failed to comply with the court’s reporting requirements. For example, Minnesota law provides for appointment of a temporary, substitute guardian but only on a showing that the child's welfare requires immediate action that the guardian is failing to address. A California court may remove a guardian who fails to return the annual Guardianship Status Report.
Read More: How Do I Get My Child Back From a Guardian?
Alternatives to Guardianship
In some situations, a mother may be able to choose an alternative to a formal guardianship that gives another adult the right to care for the child but also gives the mother the right to remove or change the caretaker as desired. California law permits the making of a Caregiver's Authorization Affidavit that gives another relative of the child or licensed foster parent the right to care for the minor without the need to go to court. The state provides a pre-printed form that contains the statutory language. Because guardianship laws vary by state, a mother desiring to use such an alternative must check the laws of the state in which she resides (see Resources).
- FindLaw: FAQ on Guardianship of Minor Children
- Santa Clara County, Superior Court: Guardianship vs. Adoption
- Minnesota Office of the Revisor of Statutes: 2011 Minnesota Statutes | Chapter 524. Uniform Probate Code
- Santa Clara County, Superior Court: Guardianship Duties -- Do I need to stay in touch with the Court?
- Santa Clara County, Superior Court: Is Guardianship Always Necessary?
- Santa Clara County, Superior Court: Caregiver Authorization Affidavit