How to Get Legal Guardianship of a Child While a Parent Is in Jail

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When a parent is arrested, a child's life is quickly thrown into disarray. If no one volunteers to be the child's guardian, the child may be placed in foster care. In most states, there is a strong presumption in favor of placing a child with a relative, rather than putting the child in foster care. Legal guardians are responsible for fulfilling the same duties that parents fulfill, such as ensuring the child attends school and tending to the child's medical needs, so guardians should ensure they are prepared to take on these responsibilities.

Contact the agency in charge of foster care placement in your state. In most states, this agency is called Child Protective Services or the Department of Family and Children's Services. When another parent is not available to take custody of a child whose parent is incarcerated, CPS or DFCS often takes temporary custody. Notify them you are a relative or friend interested in seeking guardianship and ask about their procedure. In some states, guardianship must be approved by CPS and CPS may file the relevant court documents.

Read More: How to Obtain Legal Guardianship of a Child

File a motion for temporary guardianship in the family court of the county where the child currently resides. The petition must indicate the amount of time for which you are seeking guardianship. If you do not know when the parent will be released, state you are seeking guardianship until the parent is released. If you do not state a specific period of time, your state may grant you guardianship for a pre-set period such as a year or six months. This can result in unnecessary disruptions in the child's life.

Answer any questions asked in the guardianship investigation. If the child already lives with you, the court may issue a guardianship order after a brief investigation. If the child does not already live with you, you will need to provide evidence you can provide the child with a stable home. The court may send a court-appointed special advocate, social worker or other expert to conduct an investigation of your home. If the child was previously in CPS custody, CPS may allow the child to live with you on a preliminary basis prior to formally granting guardianship.

Present evidence that you can provide a stable, loving home at the hearing. Not all guardianship proceedings require a hearing, particularly if the child already lives with you or CPS has conducted an investigation. However, there will be a hearing in most cases. In all states, child custody decisions are made according to the child's best interest so you must demonstrate that living with you, rather than with another relative or in foster care, is in the child's best interests. You must demonstrate that you can provide both financial and emotional support and your home is a safe environment. If someone else is seeking guardianship, you must provide evidence that your home is a better choice. You may submit any evidence and call any relevant witnesses. Only a judge can grant temporary guardianship so you must go through the legal process of seeking guardianship.


  • Unless you know that the parent's incarceration will be brief, you should not volunteer to be the child's guardian if you are only able to provide care for a brief period of time. Bouncing from house to house can be extremely traumatic for children. If you aren't sure if you can provide care for the child, it may be better to help CPS find a suitable guardian, or visit the child frequently while she is in foster care.

    Even if the child already lives with you, you are not her legal guardian unless you are her parent. You must seek legal guardianship to have the right to make medical, educational and other decisions for the child.


  • Depending on the reason the parent is in jail and how long she will be there, the court may want evidence you will voluntarily relinquish custody when the parent is released. You must relinquish custody when the parent is released, unless you have been directed otherwise by the judge.

    If the child has another non-incarcerated parent, you must serve them with your petition for guardianship. There is a strong presumption in favor of granting guardianship to the other parent, unless the parent has been deemed unfit.


About the Author

Brenna Davis is a professional writer who covers parenting, pets, health and legal topics. Her articles have appeared in a variety of newspapers and magazines as well as on websites. She is a court-appointed special advocate and is certified in crisis counseling and child and infant nutrition. She holds degrees in developmental psychology and philosophy from Georgia State University.

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