A county probate or family court oversees the appointment of legal guardians for a minor child. You can petition the court to transfer guardianship if the child's parents or current guardians are unwilling or unable to care for the child, and if transferring guardianship would be in the child's best interests. Once appointed, the new guardian takes over the welfare, care and protection of the minor child.
Find the Correct Court Forms
Each jurisdiction has its own forms; find these by calling or visiting the probate or family court in the county where the child lives and explaining your situation to the court clerk. Generally, you'll need to file both a petition for the appointment of a guardian for a minor as well as a child information form or affidavit. The affidavit tells the court about the child's current living arrangements and other parties such a close family members who may have an interest in the transfer of guardianship. There may be other forms to file if, for example, you believe the child currently has an intolerable living situation or if the child receives public assistance benefits.
Complete the Forms
The person who fills out the forms is called the petitioner. This person could be the child's current guardian or the proposed new guardian. If a second person is asking to be a co-guardian, that person must also fill out and sign the forms. When you're happy with the forms, sign and date them. Some documents such as affidavits must be signed in front of a notary because these documents are written under oath.
File and Serve the Forms
File the completed forms by delivering or mailing them to the court and paying the filing fee. Once the petition is filed, the court sets a date for the hearing, and you must notify all interested persons that you are petitioning for a transfer of guardianship. Depending on your jurisdiction, these people might include the child's parents and current guardians.
You might also be required to notify the child if she is over a certain age. In Maine, for example, you must send a copy of the petition to the child if she is over the age of 14.
Notice requirements vary between jurisdictions. Check with the court whether you can serve the papers by certified mail, or whether they should be served by the county sheriff.
Attend the Hearing
A judge must approve the transfer of guardianship at a legal hearing. The judge will review the petition and decide whether the transfer is in the best interests of the child. If the child's current guardians, the proposed new guardians and the child all consent to the transfer, then the judge likely will approve the petition unless there are compelling reasons to refuse it. Where the transfer is contested, there may be a lengthy hearing or a series of hearings to determine guardianship.
Accept the Guardianship
Once the judge approves the transfer, a final order will be entered with the court. The order relieves the old guardians from their guardianship duties. The new guardian will need copies of this order to give to the child's school or doctor's office.
In most states, the new guardian must also file an acceptance of guardianship with the court. This affidavit confirms that the guardian understands and accepts the duties of guardianship and will make decisions in the best interests of the child.
Read More: How to Change the Guardianship of a Child
Jayne Thompson earned an LL.B. in Law and Business Administration from the University of Birmingham and an LL.M. in International Law from the University of East London. She practiced in various “Big Law” firms before launching a career as a commercial writer. Her work has appeared on numerous legal blogs including Quittance, Upcounsel and Medical Negligence Experts.