Guardianships can be created for a variety of reasons. Typically they are created when a court is concerned about the welfare of a child that is going through a difficult situation such as a contested divorce, or where someone is alleging abuse or neglect of the child. Guardianships can also be temporary uncontested arrangement if a parent needs to leave for an extended period such as leaving for boot camp or taking college classes elsewhere. In these cases, by establishing a guardianship, the grandparents have legal authority to act as the caregiver of the child in the parent's absence. Thus guardianships can be voluntary or involuntary in nature.
Guardianship by Consent
Parents who consent to guardianship with grandparents can create a voluntary guardianship. Guardianship does not create legal custody, but it does vest authority in the grandparent to make day-to-day decisions for the child, including medical care.
Where the natural parents have not been adjudicated unfit, a voluntary guardianship is the only way for a grandparent to obtain guardianship, as courts recognize the fundamental rights of natural parents to raise children as they see fit, and thus will not violate the parent-child relationship unless the relationship has failed.
Involuntary guardianship can occur when grandparents adopt a child after a court terminates the rights of the natural parents, or if a probate court removes the child from the parents due to an adjudication of unfitness, and vests guardianship with grandparents. The process is initiated either by a state child services agency, or by petition of the grandparents, who claim that a change in guardianship is in the child's best interests. Note that in these situations courts may still award reasonable visitation to the natural parent.
While the process varies by state, generally grandparents will need to file a petition for guardianship in the county where the grandchild currently resides, before the applicable family court. The natural parents will be given a copy of the petition, and have a chance to prepare responses. Many states may order social services to inspect the grandparents home prior to any determinations. Where the court is concerned about the child's rights, it may appoint a guardian ad litem, who will represent the child through the process.
Regardless of agreement, most states place restrictions on who can be appointed the guardian of a child. For instance, convictions for felonies, or abuse against the child will bar a grandparent's eligibility. In addition, if an evaluation finds the grandparents home unsuitable for the grandchild, the court may require modifications or changes in order for an award of guardianship to be granted.