Guardianship of a minor in the state of Missouri is a legal process that happens in state court. An appointment of guardianship gives the guardian authority to care for the child and to make decisions as a fiduciary on their behalf.
Anyone considering becoming the guardian of a minor child in Missouri should get an understanding of the legal process of guardianship, the role of a guardian, and how to proceed with an application to be appointed guardian.
Missouri Guardianship Law
A guardian of a minor child is an adult who steps in to care for a child when the parents are unable to do so. A Missouri guardian oversees the maintenance and support of the child. This can be because the parents have died, abandoned the child, or been declared unfit to care for the child.
Occasionally, Missouri guardianship of a child can be limited to handling complex issues that the parents cannot handle like health care, medical insurance coverage or school registration.
An adult does not just step into the role of guardian. A Missouri court must order a guardianship for it to be legal and effective. Generally the guardianship is brought to the court when an adult applies to become the child's guardian. The matter is heard in probate court in Missouri, and the probate judge orders a guardianship.
Minors in the Care of the Missouri Child Division
If a minor child is in the care of the Missouri Child Division, the case can be heard and decided by Missouri Family Court. This is also the case if there already is a case pending in Family Court that involves the minor.
Parents/Parental Choices as Guardian
Missouri law makes it very clear that parents have priority when it comes to acting as the guardian of their minor child. The law states that “letters of guardianship for a minor should not issue unless there is no parent available, willing or able to fulfill the parental role in caring for a child.”
This includes a putative father, that is, a man whose name is not on the birth certificate as father but claims to be the father or has been named as the father. Special rules apply to putative fathers.
If neither parent is able and willing to be the child's legal guardian, another adult must be appointed. This may happen because the parents are deceased, in prison, incapacitated themselves or adjudged incapable of taking care of the child.
Naming a Guardian in a Will
It is a common practice for parents of minor children to specify in their wills who they wish to step in as guardian of their children if they die or are incapacitated. Often, parents will name a family member or close friend who they would trust with their child’s well-being, including making decisions about medical care and personal affairs. A court will usually accept this appointment.
Naming a Temporary Guardian
Missouri parents who are alive and well have authority to assign guardianship of their minor children to another adult for a year or less. This could happen if the parent is unavailable, such as traveling, for an extended period of time. But a guardianship petition is still required. The parents must file it with the court and attend a hearing to have the appointment approved.
Choosing of Guardian by a Child
If the child is over 14 years of age, and both parents are deceased, they can choose their own guardian. However, if the child is in the custody of the Missouri Children’s Division, the agency must also give its consent to a guardian appointment.
Rules Regarding Putative Fathers
If a father was not named on the minor child's birth certificate, the court must inquire as to whether there is a putative father available to care for the child. This is a man who either says that he is the child's father or else has been named by the child's mother as the child's father.
Missouri Putative Father Registry
In Missouri, there is a Putative Father Registry (PFR) that lists the names of all men who are the fathers of children out of wedlock in the state, who claim paternity, or who have indicated an interest in claiming paternity.
If the mother of a minor child is not able or willing to care for them, and the court is asked to grant a guardianship, the person filing the petition must request that the PFR search to see if anyone has claimed paternity for the child.
The response from the PFR will indicate whether a putative father is listed in their registration records and whether he has a potential interest in the child’s life. While the response to the inquiry need not have arrived at the time the petition is submitted, the request form must be sent before papers are filed with the court and, in fact, must be filed as an attachment to the guardianship petition.
Summary of Guardianship Appointment
The probate court can appoint any of these persons guardian of a minor child:
- Either parent or both parents of the minor child.
- An adult selected by the minor if both parents are dead and the child is at least 14 years old.
- If both parents are deceased, the person named as guardian in the will of the last surviving parent.
- A person deemed by the court the most suitable individual willing to serve as guardian.
The court must make this appoint with the best interests of the child in mind. The appointment should provide the child with a stable and permanent placement.
Filing a Petition for Guardianship
Any adult who fits into one of these categories can file a petition for guardianship with the court. Alternatively, another person can file the petition and nominate the individual as the child's guardian. The petitioner must establish that guardianship is necessary, explain to the court why it is necessary, and also nominate themselves or another individual for appointment.
The first part of the petition should give the particulars about the minor child. This includes the child’s name, age, place of residence, mailing address and identifying information about the adult who currently has custody of the child. It must state why guardianship is being sought and why it is in the best interests of the child. This can be done in several ways by explaining:
- That the parents are deceased.
- That the parents are unavailable to care for the child.
- That the parents are unfit.
- Why the current situation is detrimental to the child.
If the parents are living and do not consent to the guardianship, the petition is considered contested. The court will conduct a hearing to make the determinations.
Required Exhibits and Addendums
Since the appointment of a guardian has a huge effect on a child's life, much documentation is required. The exact exhibits and addendums depend on the facts of the case, for example, why guardianship is required. But some documents are required in every petition. These include:
- Child’s birth certificate.
- Search request to the Putative Father Registry (PFR) if the father’s name doesn’t appear on the birth certificate, and no court order has named him as the father. If the PFR has responded by the time the petition is filed, that response can be submitted with the petition.
- List of names, birth dates and Social Security numbers of all parties to the petition set out in a confidential filing information sheet.
- Family tracking sheet that provides the details of any other court proceedings in which the child has been or is currently involved.
- Statement regarding the child's financial situation, such as whether they own any property or hold any assets.
- Parents' written consent to a guardianship if given.
- Statement of consent to a guardianship if the Missouri Children’s Division is involved with the child.
- Order for Publication of Notice.
Additional Information About Proposed Guardians
Note that additional information must be provided about any proposed guardian. This includes:
- Request for criminal records involving child abuse or neglect for any adult living in the home of the proposed guardian. Like the PDF search request, the records can be introduced later. At the time of the petition, the court simply wants proof that the request was made.
- Request for a guardianship suitability study regarding the proposed guardian by a licensed child placement agency in Missouri. This suitability study is an evaluation of the guardian's home and family and is mandated even where the child is already living with the guardian. It involves a home visit that takes several hours. The agency will provide a confirmation of suitability form upon successful completion, which the guardian submits to the court.
- Guardian's personal financial statement, detailing their property, assets and income, together with a recent paycheck stub.
This list of documentation is included in a packet of information available to the proposed guardian at the court. The packet also includes instructions and resources, including a list of qualifying child placement agencies.
Serving the Petition for Guardianship
Many people are entitled to copies of the petition for guardianship, and the law requires that they be served when the papers have been filed with the court. These people include:
- The child if age 14 or older.
- The child's spouse if married.
- The child’s parents if not deceased.
- The child’s putative father if located and his parental rights have not been legally terminated.
- Any current guardian of the child or any individual who presently is taking care of the child.
- Any Missouri child assistance agency that might be able to provide insurance benefits, pension rights or other compensation to the child or that might potentially be assigned control and custody of the child.
In Missouri guardianships, the preference is for these individuals to be served with papers personally – handed the papers by the person filing the petition.
Note that these individuals have the right to waive service if they wish. If they do, the guardian prepares and files a waiver of service of summons form with the court for each person who does. These must be filed at least 20 days before the court hearing.
Hearing on Guardianship/Letters of Guardianship
The person filing the petition must be sure to include all required information and documentation or the petition will be returned by the court clerk. The clerk reviews it when submitted and checks for completeness. If anything has been omitted, the clerk returns it to the petitioner to be supplemented with the missing documents.
Once the petition is complete, the court appoints an attorney to represent the child's interests in the proceeding termed a guardian ad litem for the child. This person meets with the child and prepares for court. The court sets a hearing date and the various interested parties come forward to present their positions to the court.
If the Missouri petition for guardianship is approved, the court issues the guardian letters of guardianship. This document authorizes the guardian to care for and act on behalf of the minor.
- Stange Law Firm: Missouri Law Summary on Guardianships
- 7th Judicial Circuit Court, Clay County, Missouri: Difference Between Custody and Guardianship
- Justia: Missouri Revised Statutes Section 192.016 - Putative Father Registry
- Revisor of Missouri: Missouri Laws Section 475.060 Application for Guardianship
- Missouri Guardianship: Missouri Law Summary on Guardianships
- All costs associated with obtaining guardianship are paid by the Respondent's estate or the county if the respondent does not have an estate. If the Petitioner loses his claim for guardianship, he will be responsible for all costs.
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.