Sometimes a divorce can leave a child without a competent parent to care for them. One or both parents may have suffered a severe physical or mental illness or drug or alcohol abuse problem. Depending on a host of different circumstances, a child may require the appointment of a legal guardian.
Two Types of Child Guardianships
Guardianship Laws Over A Minor Fall Under Two Categories
There are two different types of legal guardianships—guardianship over the person and guardianship over the estate.
Guardianship Over The Person
In the guardianship of the person, the guardian has the same responsibilities to care for the child as a parent would. Being a Guardian is a fiduciary responsibility, not unlike what transpires during a conservatorship which usually involves caring for an elder.
That legal guardian assumes full legal and physical custody of the child and can make all legal decisions about the child’s physical care that a parent would make. A guardian can be any interested party, such as relatives, friends, and family.
The guardian is responsible for the child’s day-to-day welfare, including:
- Food, clothing, and shelter
- Safety and protection
- Physical and emotional growth
- Medical and dental care
- Education and any special needs
- The guardian is also responsible for the supervision of the child and may be liable for any intentional damage the child may cause.
Guardianship is sometimes needed when a child is taken away from a parent because the parent cannot care for the child. There is a public policy in favor of keeping the child with the parent or parents so long as the child’s welfare is not threatened.
This gets complicated when it involves one or both parents with different parenting roles. Certain factors are considered and explained below in determining whether a spouse or partner is fit to parent.
Disqualifying criteria may include one or both parents:
- Have a severe physical or mental disorder
- Currently in the military and reside outside the country
- Requires treatment for serious drug and alcohol abuse
- Parent sentenced to prison
- Parents have a history of being abusive to the children
- Parents unable to care for children due to homelessness or other forms of financial hardship
The court will always base its judgment on what is in the child’s best interest of the child and to ensure the child is in a safe, stable, and caring environment.
Guardianship Over The Estate
A guardianship over the estate is created to manage a child’s income, money, and property until the child turns the age of majority, which in most states is eighteen.
A child may require the court to appoint a guardian of the estate if the child inherits a significant amount of money or property.
In most cases, especially in personal injury cases and under a minor’s compromise, the court will usually appoint the surviving parent as the guardian of the child’s estate.
Should the child be involved in litigation, the court will usually favor appointing a guardian ad litem to care for the child’s legal interests during the litigation.
The guardian of the estate must:
- Manage the child’s money
- Make smart investments
- Manage the child’s property carefully
Divorce Attorneys
Should you have more questions about how child guardianships work, consider consulting with an experienced Divorce Lawyer as soon as possible.
