Guardianship of the Person of a Minor Child

What Is a Petition for Guardianship of the Person of a Minor Child?

A petition to establish a Guardianship of the Person is a legal action which asks the Probate Court to award physical custody of a minor child to a non-parent. The proceeding is filed in Probate Court because no divorce is pending between the parents or, in cases where a divorce is pending, because one or both of the child’s parents do not consent to the proposed guardianship. The Petitioner may be the same person as proposed guardian, an interested party (nominating another to be the guardian), or the child, if at least twelve years old (nominating an adult to be guardian). A Guardianship of the Person awards only physical custody to the guardian. If the child has an estate, a separate petition for Guardianship of the Estate must also be filed to remove control of the child’s estate from the parents. Often a different person from the child’s physical guardian is appointed to serve as guardian of the child’s estate.

The Court Process in Probate Court

The filing of a petition for Guardianship of the Person causes the Court to set an initial review hearing and triggers a referral to the Probate Investigation Unit, a group of social workers employed by the Court who interview the child, the proposed guardian, the parents, family members, and all other interested parties. The Probate Investigator files a written report in the court file, describing the facts of the case and making a recommendation. The final decision to grant or deny the Guardianship rests with the Court. If the proposed guardian or child’s parents disagree with the recommendation, they have a right to a trial. The Court may also appoint an attorney to represent the child (Minor’s Counsel). In urgent situations, the Court may grant a pre-trial Temporary Guardianship of the Person at the beginning of the case. The granting of a Temporary Guardianship is no guarantee that a long-term Guardianship of the Person will be granted, but seeking a Temporary Guardianship pre-trial is sometimes in the best interests of the child.

Acting Prior to Juvenile Court Intervention

If not filed prior to Juvenile Court detention of a child in foster care, a Probate Court action for Guardian of the Person may be pre-empted by the jurisdiction of the Juvenile Court. For this reason, it is wise to file a petition for Guardianship of the Person in Probate Court as soon as it is known that the child needs to be removed from parental custody. In some cases where a county child protection social worker has begun an investigation, the filing of a petition for Guardianship of the Person in Probate Court (especially where a Temporary Guardianship is granted at the outset) will convince the social worker to refrain from making a referral to launch a Juvenile Court intervention.

Who May Serve as Guardian of the Person?

The Guardian of the Person may be a relative (eg., grandparent, aunt, uncle) or an interested party (eg., a neighbor who has a track record of providing a substantial amount of care for the child). It is easier to obtain an Order for Guardianship of the Person in cases where a child has already been living with the proposed guardian for at least four months preceding the filing of the petition, but it is not necessary for the proposed guardian to have any prior history of providing habitation, food, clothing, or any other form of support for the child. After a long-term Order for Guardianship of the Person of a minor child is granted, the physical guardian may commence a child support action against either or both parents, based on the same child support law which applies in divorce custody cases.