A guardian cares for and oversees the maintenance and support of either a child or an incapacitated adult. In the case of a child, guardians typically have custody and control because the parents are unfit, unwilling or unable to care for the child themselves. However, guardianship of a child can be limited to dealing with issues of medical insurance coverage and school registration.
The arrangement is ordered by a probate court in Missouri, usually upon application of the individual who wants to become the child’s guardian. It’s ordered by the family court, however, if the child is in the care of the Missouri Child’s Division or if there’s already a pending case involving the child in the family division.
Parents Are Always the First Choice
Chapter 475 of the Missouri Revised Statutes dictates who can apply to the court to act as a child’s guardian. A parent always has the first right. In fact, Missouri case law specifically states: “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.”
Legal Qualifications for Guardians
A child over the age of 14 can select their own guardian if neither parent is living, but the child must consent to the appointment of an individual if they’re 14 or older. The guardianship petition is considered contested if the child doesn’t consent. The Missouri Children’s Division must additionally consent if the child is in its custody.
The guardian doesn’t necessarily have to live within the state of Missouri, but the court will decide if they’re able to adequately care for the child if they don’t. Guardians must make annual reports to the court regarding the welfare of the child.
Guardianship by Parental Consent
Parents sometimes nominate a guardian in their wills in the event of their deaths, and the court will generally approve and appoint that individual.
Missouri parents can also assign guardianship to another individual during their lifetimes, but the arrangement can’t last for longer than a year. This might happen if the parent is traveling or otherwise unavailable for an extended period of time. A petition must still be filed with the court, and a hearing is still required for approval.
Filing a Petition for Guardianship
Seeking guardianship of a child in Missouri begins with filing a petition for guardianship with the court. The guardian can do this themselves, or someone else can do it, nominating the guardian.
The petition should cite the child’s name, age, place of residence and mailing address, as well as the name of the individual who currently has custody of the child. It must state why guardianship is in the best interests of the child and why it’s being sought.
This can mean detailing why the parents are unfit or unable to care for the child. Ideally, they’ll consent to the guardianship. Otherwise, the petition is considered contested, and it will result in a court hearing.
A guardianship petition isn’t a simple one-page document. Numerous exhibits and addendums must be attached. These include:
- The child’s birth certificate.
- A response from the Putative Father Registry (PFR) if the father’s name doesn’t appear on the birth certificate and no court order has been entered naming him as the father. A putative father is someone who either claims to be the father of the child or has otherwise been named as the father. The response from the PFR will indicate whether any such individual exists according to their registration records and has a potential interest in the child’s life. The response can be submitted after the petition if it hasn’t received been received by the time of filing, but a search request must be made and the request form must be filed with the petition.
- A confidential filing information sheet, detailing the names, birthdates and Social Security numbers of all parties to the petition.
- A family tracking sheet detailing any other court proceedings that have involved or currently involve the child.
- A financial statement regarding the child’s ownership of any funds or property.
- The written consent of the parent or parents if it’s been given.
- The consent of the Missouri Children’s Division if they’re involved with the child.
- An Order for Publication of Notice.
- A request for the criminal record for child abuse or neglect for any adult age 18 or older living in your home. The records will be forwarded to the guardian, who must submit them to the court after filing the petition. At this point, the court just wants proof that the guardian made the request.
- Confirmation of a request for a guardianship suitability study by a licensed child placement agency within the state. The agency will complete this form for the guardian when she arranges for the study, so she can submit it with her petition.
- The guardian's own personal financial statement, along with his most recent paycheck stub, if applicable.
The list might seem overwhelming, but guardians can pick up a packet at the local county courthouse that should contain all these documents, along with instructions and resources, including a list of qualifying child placement agencies.
Who Must Be Served
Guardians must serve copies of the petition on several individuals after it’s been filed with the court:
- The child if they’re age 14 or older.
- The child’s parents if they’re living.
- The child’s putative father if someone has been located, unless his parental rights have been legally terminated.
- The child’s spouse if they’re married.
- Any current guardian or individual who presently has care and control of the child.
- Any U.S. or Missouri agency that could potentially provide insurance benefits, pension rights or other compensation to the child or that might potentially be assigned control and custody of the child.
Personal service is preferred. This means the guardian hired someone to hand-deliver the papers. But any or all of these individuals can waive service. The guardian must file a waiver of service of summons form with the court for each of them who do, and they’re due at least 20 days before the court hearing.
The Suitability Study
A suitability study is required even if the child is already living with the guardian. It’s an evaluation of the guardian's home and family, and the visit usually takes about two hours. The agency will provide her with a confirmation of suitability form upon successful completion, which she should submit to the court as soon as possible.
Letters of Guardianship
A court clerk will review the petition when the guardian submits it to ensure that it’s complete. He’ll be notified if he left anything out, and his packet will be returned to him so he can supplement it with any missing documents.
The court will then appoint a guardian ad litem for the child, an attorney to represent their best interests in the proceeding. There’s a fee for this, but it’s included in the filing fees.
The clerk will then set a date for a hearing, usually within 90 days. If the petition is approved, the guardian will receive letters of guardianship, authorizing her to care for and act on behalf of the minor.
Read More: How to File for Legal Guardianship of Children in MS
- 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.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.