A relative, such an uncle or aunt, can get custody of a minor child by filing for guardianship. If the judge finds that the parents are unfit to care for the child and that staying with them will be harmful, then the judge may issue an order granting guardianship.
Getting custody of a minor family member who is not one's own child, such as a nephew, is called guardianship. Under guardianship, the guardian has physical custody and the same responsibilities as a parent, such as making sure that the child is physically and mentally cared for and receives an education. Guardianship differs from adoption in that it doesn't terminate the parents' legal rights over the child. Those wanting to adopt a child have to follow a whole different set of rules and processes.
Getting Help to Obtain Guardianship
The laws on who may get guardianship of a child and when they can do so vary from state to state. Also, the exact court process and rules that must be satisfied can even vary from county to county, so it's important to check with the county courthouse's family law department for information on exactly how to get custody as a nonparent. Typically, the county in which the case must be filed is the county in which the child lives.
Some courthouses have self-help packets posted online and/or available at the courthouse that contain all necessary paperwork and instructions. Some courthouses also have family law clinics that provide free and/or low-cost legal assistance.
File the Petition for Guardianship
The case begins when a petition is filed with the county courthouse's family law department. The child's parents and any other legal guardians or custodians typically have to be listed as the respondents. The person asking for guardianship is the petitioner. On the petition, the petitioner provides basic information about everyone, including the petitioner, the child and the respondents.
The petitioner also provides information on why the child should not live with her parents and why the petitioner should have custody. Most importantly, the petitioner must show that the parents are unfit to care for the child and that parental custody would be detrimental to the child. Other requests may be asked for in the petition. For example, the petitioner may provide a proposed visitation schedule or request child support, health insurance coverage and/or the payment of day care or other expenses.
A filing fee must be paid to the court clerk at the time of filing. Those who cannot afford to pay can ask the court to waive the filing fee by filling out a form detailing their financial situation.
Serve the Petition on the Respondents
The petition and other papers must be served on the respondents so they receive notice of the case and have a chance to respond. The petition and all relevant court papers usually must be personally served, meaning hand-delivered, to the respondents. The server can be anyone over the age of 18 so long as they didn't sign the petition.
Sometimes, people hire a registered process server or have a representative of the county sheriff's civil division serve the respondents. In some situations, such as when the petitioner cannot find the respondents, petitioners send the court papers by certified mail or post notice of the court case in a publication.
Default, Settlement Conference or Court Trial
If the other party doesn't respond by the deadline set by the court, the petitioner may request that the court enter a default order. Once the judge issues the default order – which may or may not grant the petitioner everything she requested – the petitioner must serve the respondents with the order. If they respond, the court clerk will set a settlement conference or a trial date. In some locations, the parties must attend a settlement conference so they have the chance to settle matters without going through a trial.
Before trial, evidence may be gathered. The court may appoint a court investigator to interview the child, the petitioner and the respondents. The investigator may also do home studies, conduct background checks and review the child's documents, such as his school and medical records.
At the hearing, both the petitioner and the respondents, with or without lawyers, have the opportunity to answer the judge's questions and present their case as to why the guardianship should or should not be granted. The petitioner may provide more information and evidence on how the respondents are unfit parents and how she can better care for the child. The respondents may in turn explain their situation and how they have been and/or intend to care for their child.
Court Order Granting Guardianship
If the judge agrees with the petitioner, he will sign an order granting guardianship. The petitioner then files the order and any other relevant papers with the clerk's office. To avoid any conflict, the petitioner should request multiple certified copies of the guardianship letters and keep one copy on hand at all times, such as in a wallet. The guardian should also provide a copy to any person or entity that will have regular contact with the child, such as a hired babysitter or the child's school.
Sometimes, the court will request a status report from the guardian every year to ensure that guardianship is still appropriate and beneficial for the child.
Alternatives to Guardianship
Sometimes, going through the court process of getting guardianship is not necessary. For example, if the parents agree that another family member, such as an uncle or aunt, should temporarily take care of their child, they can complete and sign a form such as a Caregiver's Authorization Affidavit or a Power of Attorney for a Minor Child. The local county courthouse may provide information and the necessary forms for alternatives to guardianship.
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