Legal Guardianship Defined
Legal guardianship is an arrangement, in writing or in court order, between two consenting adults that gives one of the adults the right to care for and take responsibility for the minor child. The parties need to agree and then formalize the arrangement in writing, and it must be court-approved in order to provide the legal powers necessary to be effective. A legal guardian has day-to-day physical custody and control over the minor child’s life, and has the ability to consent to necessary medical care, school activity participation, and other like matters. Legal guardianship functions similar to a common law parenting time and sole legal decision-making relationship, except generally the parent retains full financial and legal responsibilities for the child, while the parties may agree otherwise .
The difference between legal guardianship and the more typical custodial arrangements is that when legal guardianship concludes, the child returns to the care of the biological parent. General custody and legal decision-making arrangements are more permanent and custodial parents retain responsibility over their children until the minor children reach age 18, become legally emancipated, or die. Legal guardianship is often temporary and utilized when the biological parents are unable to care for the children for some period of time (i.e., military deployment, incarceration, school or employment opportunities, etc.).
Can a Step Parent Become a Legal Guardian?
If the biological parents have granted you the authority under the parent agreement, then most likely yes. However, you must have the consent of the biological parents if they are the fit, primary custodial parents and are collectively consenting to you as a possible step parent being given the authority to become the legal guardian.
If the biological parent is deceased, a person generally must file for legal guardianship in the local family court office (in New Castle County, it’s in Wilmington). To obtain legal guardianship, the individual must provide the aforementioned proof of incapacity (a medical or psychological certification) for the parent who is physically or mentally unable to make arrangements for his or her child.
If the biological parent dies after creating a Will that names you as the legal guardian and you are either the named legal guardian in the Will or a person nominated by the Court as the temporary guardian, you can establish rights as the child’s legal guardian. If a hearing is held, you may need to show that you are a fit and proper parent before a guardian is appointed.
If a court believes that a parent’s rights or interests conflict with those of the child, the court could appoint a "guardian ad litem" to represent the child’s best interests and fight against the parent’s wishes. In extreme cases, the court can terminate parental rights altogether.
It is advised that step parents receive a court-ordered visitation schedule with a child. The custodial biological parent may need to prove in court that stop visitation with the step parent is in the child’s best interest if they want to terminate a step parent’s visitation rights.
The Process for Securing Legal Guardianship by Step Parents
The specific steps a step parent needs to take in order to become a legal guardian of a minor child generally depend on whether the biological parent has consented to the guardianship or has relinquished his or her parental rights. The formal process for obtaining a legal guardianship for a step-child usually includes the following steps:
Obtain consent. If the biological parent is on board with the idea, your first step will be to obtain his or her written consent. This typically requires that each person have a notary public available to them, and that the biological parent signs the consent.
File consent. Submit the consent form to the court in the county in which you and your spouse reside. Additionally, if the child is 12 years of age or older, you must also have him or her submit a written consent.
Obtain notice forms. A court will require all parties involved to submit a form notifying interested parties about the impending legal guardianship. This includes the biological parent and any other individuals who have had visitation or custody of the child, such as an ex-spouse of either of the parents or the parents’ parents. In most cases, notice must be shown by mail, and a copy of the notice from the court must be sent to all the interested parties. As the petitioning party, it is your responsibility to ensure that this task is accomplished.
Obtain a court hearing. Anyone who objects to the guardianship must appear at the court hearing to explain the reasons for their objections. In the event that an objection is filed, the judge will decide whether the guardianship proceeding can move forward.
Final arrangements. Once you have been granted guardianship of your step-child, you may need to adjust some of his or her legal documents. For example, you may need to get a new social security card listing you as the legal guardian. You may also need to get a new birth certificate and passport issued.
Perks and Duties of Legal Guardianship
In the realm of family law, step parent legal guardianship carries a distinct weight, offering unique benefits to the step parent and legal rights that transcend the traditional step parent relationship. Understanding these advantages and associated responsibilities is paramount for anyone navigating this intricate form of familial connection.
One of the most significant benefits of being a legal guardian for your step child is the enhanced ability to make crucial decisions on their behalf. This includes financial and medical decisions, as well as those pertaining to their education and welfare. Unlike the role of a typical step parent with no legal rights, a step parent who has sought legal guardianship gains a substantial say in all matters regarding the child.
The advantages extend beyond decision-making. Establishing guardianship offers stability and assurance for both the step parent and the child. For the step parent, this arrangement solidifies their role in the sibling hierarchy, creating a more cohesive family unit. For the child, it can establish a sense of permanence and security in their home life, which is especially beneficial in situations involving divorce or death of a biological parent .
However, with these benefits come specific responsibilities. A legal guardian must be prepared to take on a serious level of responsibility for the child’s upbringing and care. This includes emotional support and discipline, as well as financial obligations such as food, shelter, and healthcare. This dedication is distinct from that of a typical step parent, who may not bear full legal and financial responsibility for the child.
Additionally, it is essential for any step parent considering legal guardianship to be aware that the process is not always straightforward. There may be challenges or opposition from others, particularly if the biological parent is still living. In such cases, legal advice and guidance are crucial.
In conclusion, step parent legal guardianship is a powerful tool for creating lasting and meaningful connections. It is essential, however, to weigh both the benefits and responsibilities involved in this role, ensuring that the decision to pursue legal guardianship is the best choice for both the step parent and the child.
Legal Concerns and Considerations
While step parent legal guardianship can often be a smooth transition, it can also become a legal battleground if not approached correctly. One important aspect of guardianship to note is when the biological parent is still involved in the child’s life. In some cases, the biological parent may contest the move for guardianship. This may be a tactic to maintain regular visitation with their child, or because they do not agree with the move at all. If you are working with a biological parent towards children’s school records and have agreed on your role in the child’s life, there should be no contesting.
Another legal challenge to step parent legal guardianship is whether the state where the legal guardianship is being transferred allows for this type of arrangement. According to the American Bar Association "[s]tates vary widely in their approach to custody/legal guardianship for children whose parents are living." Some states will allow full adoption. In some states, guardianship and adoption are the same. Some states combine the two terms and use "legal guardianship/custody" instead of two distinct terms. Depending on the state, the biological parents may relinquish their rights to the child, or may retain some rights, so it is important to understand how the state will react to the step parent areas of life. Depending again on the state, if the step parent is not the biological parent and divorce from the biological parent occurs, the step parent may not have full custody of the child. In some cases, the biological parent may regain their rights later. In other cases, the step parent may have to refile petitions.
Much like adoption, sometimes a step parent may not have had the relationship with the child long enough to achieve guardianship. In other cases, they may need to file for another type of guardianship program, such as kinship guardianship. These issues can become especially problematic over international boundaries. In some cases, the step parent may lose rights to the child because jurisdictions differ.
Legally, the easiest route is through adoption. Guardianship agreements are subject to enforcement until revoked, while adoption is permanent by most states. However, a full adoption may interfere with the ability to manage the parents’ estate. It may also involve losing certain benefits.
Expert Advice for Step Parents
Obtaining legal guardianship requires formal court approval and that means you have to follow a very specific procedure. The Law of Remarriage is full of state-specific nuances which cannot be accounted for in a blog post. More importantly, there are frequently hidden agendas behind the push for legal guardianship which only arise with the passage of time. It is always advisable for step parents to seek the services of a family law attorney if they are considering guardianship. Even in cases where a marital agreement addresses domestic issues , the passage of time and the process of family growth can present issues which can come back to haunt you in the future. A simple consultation can help you determine whether guardianship is right for you, your spouse and, most importantly, the child.