Papers to File for the Guardianship of a Grandchild

By Teo Spengler - Updated October 22, 2018
Two girls and grandfather reading book in living room

It isn't an unusual phenomenon in this modern world: parents are unable to care for their children, and grandparents step in. Sometimes this is an informal and temporary agreement, but often it turns out to be longer than that. As time passes, the court may issue a temporary custody order to the grandparents, give them full custody or even make a grandparent the legal guardian of a grandchild. Each is a different procedure requiring different procedural steps. To confuse matters still further, the states have different rules about custody and guardianship, and the requisite procedural hoops can differ quite a bit from jurisdiction to jurisdiction.

When Grandparents Step In

Ask any grandparent and he will likely tell you that he much prefers the role of doting grandparent to that of a mother or father. You get the joy in small doses without the burden of having to manage the day-to-day decisions and discipline. But if the time comes when a child's parents are not able to care for her, grandparents are likely to step up to the plate and go back into the role of raising a child.

When does this happen? The range of circumstances that can result in a parent being unable to care for a child are vast. Parents are humans too, and, as such, they can get into trouble with alcohol or drugs, get involved in a life of crime and go to jail, suffer from debilitating medical conditions, or find their lives impacted by mental health problems. They can also simply be irresponsible, they can get terribly hurt in an accident, they can die.

If both parents are unavailable to care for a child, someone has to step in. While the state is prepared to take children without parents or with unfit parents into the foster care system, a grandparent can ask to take over that role. Although experiences differ, it is likely that living with a relative probably provides a better base for a child than anything the state can offer.

Temporary Child Custody for Grandparents

If the term "custody" makes you think of a divorce, you are not alone. The decisions a court makes in a divorce about where the child will live most of the time and who makes decisions for her are termed physical and legal custody orders. But custody has the same base as the term custodian, someone who cares for something. And when parents are unfit or out of the picture, grandparents may get temporary custody of a grandchild from the courts.

State procedures vary widely as to how to apply for custody of a child. Generally, a person must fill out forms and get approval from the court. Grandparent custody forms are the same as custody application forms for any other third party, and you can usually find them online at the court website.

In many states, the court will award grandparents immediate emergency custody of children if the parents leave the children with them. Receiving an emergency temporary custody order gives grandparents legal authority to care for grandchildren. If the parents do not believe themselves to be unfit parents, the court may order social service investigations and hearings before it issues any type of emergency custody order.

Permanent Custody to Grandparents

When the court issues a temporary custody order for grandparents on an emergency basis, it usually also sets a date for a second custody hearing where all parties can appear and argue their cases. Note that the second custody hearing might be called a hearing for permanent custody, but there really is no such thing as permanent custody. The courts in all states look to the best interests of the child when making custody determinations, and these best interests can change over time.

If the parents have asked grandparents to care for their minor child and agree that the grandparents should have custody, the second hearing on custody is more predictable. But when the parents dispute the allegation that they are unfit, the grandparents bear a heavy burden of proof. Generally, state laws agree that parents have the legal right to care for their minor children and make decisions for them. When any third party, even grandparents, asks that the court take custody away from the parents and award it to grandparents, the court must balance the parental right with the child's best interests.

It should also be mentioned that the court always has the option of allowing the state to take the child into protective custody, usually a first step in the foster care system. Sometimes the court will send the child into protective custody until a thorough evaluation can be done by social workers as to the best interests of the child. A grandparent's chances of custody are greater if the child has already been living at the grandparents' home, with or without one of her parents.

Guardianship of Grandchildren

The term "guardian" is often used casually to mean anyone who cares for the children. And in some states "guardianship of grandchildren" can refer to any type of care arrangement, from an informal weekend visit to a permanent living relationship. But, legally, a guardianship is a formal court order giving an adult custody of children, together with the rights and duties similar to those of parents.

In a guardianship of a child, the guardian has the same responsibilities to care for the child as a parent would. That means the guardian has full legal and physical custody of the child and can make all the decisions about the physical care of the child that a parent would make. A legal guardian of a child is fully responsible for the child's care, and must provide food, housing and clothing. A guardian makes decisions about a child's medical care, dental care and education and decides when and if a child's parents can spend time with her. However, the child's parents continue to have rights, and those parental rights are not terminated.They co-exist with the guardian's rights and responsibilities.

Obtaining Legal Guardian Status

A grandparent seeking guardianship has her work cut out for her, even if the parents do not oppose the arrangement. The first step is to get the forms required in your jurisdiction. Grandparent custody forms will be very different in one state than in another, so it is a good idea to talk to a court facilitator or to an attorney to be sure you know how to proceed. Many times, the process begins with a petition to be named guardian, but that is far from the end. Usually, notice and hearing are required. In some states, a grandparent who wishes to become the legal guardian of a child must give legal notice to every other close relative of the child, as well as relevant state agencies. In California, for example, written notice of your petition must be "served" on those people by having some third party who is 18 or older deliver copies of your court forms either in person or by mail to those people and agencies.

Because of the complexity of issues raised by a guardianship petition, it's a good idea to get professional assistance if you decide to go this route. Guardianship is often a creature of probate court, and the hearings take place before a probate judge. Balancing the guardian's duties with the parents continuing rights to be a part of the child's life can be very difficult for anyone. And it's not a short-term project. In any states, legal guardianship is a permanent relationship that continues from the initial order until the child turns 18.

About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.

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