Defining a Legal Guardian: Who Qualifies?
In a legal sense, the term "guardian" means an individual, or a couple of individuals, legally appointed by a court to manage the personal and/or property interests of another person (generally, a child or an incapacitated adult). Guardianship is most commonly associated with minors who have lost one or both parents, or who are unable to have their parents assume responsibility for them, but this is not always the case. Sometimes it may be necessary for a court to appoint a legal guardian to handle the affairs of an adult with a mental or physical impairment. The appointment of a guardian is a permanent decision, unless the court finds that it is in the best interest of the individual to remove or alter the current arrangement.
Either the parent or a concerned third-party may file a petition with the court to have a guardian appointed. Once the petition is filed, a hearing is held to determine whether or not the appointment of a guardian will be in the individual’s best interest. At the hearing, evidence will be submitted to the court regarding the circumstances of the case . If the court finds that appointment of a guardian is in the best interest of the individual, a guardian is appointed.
Guardianships may be established for the following:
Once a guardian is appointed, he or she becomes responsible for making decisions on behalf of the individual (referred to as "ward"). However, if the court finds it necessary to grant the guardian only limited authority, the guardian’s powers is specified. Guardianship orders granted by the court generally specify the powers granted to the guardian (property management, medical decisions, etc.) and are subject to the approval of the court.
Guardianship must be reported to and approved by the court. Often, a parent or family member may submit a report to the court requesting supervision over the incompetent person’s affairs. These requests will be reviewed by the court; if granted, the guardian will be required to file annual reports with the court. In these annual reports, the guardian will account for the individual’s property, actions and living conditions.
Step Parents and Their Parental Rights
Step parents do not have automatic standing to make decisions about their step children, but courts can recognize step parents as the child’s parents and grant them limited parental rights, provided that it is in the best interests of the child. Courts in Ontario approach step parent parenting as an issue of standing. To have standing to ask the court to make orders relating to child custody, support or access, a person must either be a parent or acting as a parent. According to the Divorce Act, to be considered a parent a person must either be a biological parent of the child, have adopted the child, or had a child into whose interests they intend to marry two years prior to the child’s birth*. Step parents do not have the right to make decisions for their step children at will like biological and adoptive parents have – decisions regarding religion, education, and medical care. However, if a step parent has either adopted the step child, or had a child into whom they intended to marry and had spent a reasonable period acting as a parent, they are considered to be acting in place of a parent. When considering whether to grant a step parent standing, or making orders regarding parenting time to a step parent who does not have standing, the court will consider: Courts must not make orders regarding parenting time with a person who is not a parent of the child unless the court is satisfied that it is in the child’s best interest that the order be made. If the applicant is a step parent who has been acting in that capacity for a reasonable period of time, that factor will weigh heavily in the best interests of the child. There are few reported cases, but in Aurand v. Aurand, the court refused to grant a step father standing where he had been acting as a parent for 14 months in an on-going relationship with his step daughter, because there was no element of mutual recognition of the step father as the child’s father. In M.L.C. v. R.G.C., the court found that the mother was not prevented by her divorce from having her ex-husband’s partner be the guardian ad litem for her child, because that arrangement would not prejudice the child and would give effect to her expressed intentions. If the step parent has previously been recognized as a parent, they may wish to pursue a declaration of parentage as a result of a new relationship and marriage. Without a declaration of parentage, a same sex spouse does not have standing to seek custody or access in Ontario.
How Do Step Parents Become Legal Guardians?
The legal process step parents must follow to become legal guardians will vary depending on state laws and individual circumstances. In general, a step parent will need to obtain permission from the biological parent or parents and/or a court order. The following steps are typical in many states:
- Obtain consent. If the biological parents agree, the step parent may not need to seek a court order and can instead file for a simple name change or adoption through the appropriate agency. However, this is only possible if all biological parents are in agreement, which is often not the case.
- File a Petition with the Court. If the biological parents of the child do not consent to the step parent becoming a guardian for the child, the step parent must file a petition with the court in their state requesting appointment as guardian. The petition must include:
- The step parent’s relationship to the child
- A sworn statement that they are a fit and proper person to act as guardian
- A request for powers and duties
- A copy of the child’s birth certificate or other proof of the step parent’s parental relationship with the child
- A declaration on whether the child have any living siblings
- Notify the Child’s Parents. If the biological parents are alive and have not consented to the guardianship, they must be notified of the filing of the petition. The notice include a brief description of the purpose of the petition, as well as when and where the hearing on the petition will be held. The court may allow the notice to be given by mail.
- Attend Court Hearing. In most cases, a hearing will then be set on the petition. The step parent will be required to appear at the hearing, as will the child. At the hearing, the judge will make a ruling after hearing and considering the facts and arguments submitted. A lawyer may be necessary for the step parent, as the judge will consider the best interest of the child when making a decision.
If the child is over a certain age or is in a residential placement like a group home, the judge may also ask the child whether he or she wishes to be adopted. An adoption may then occur if it is in the best interest of the child.
The process for granting step parents legal guardianship over their partners’ children is not always simple. An experienced family law attorney can help step parents to navigate the complicated laws and step-parents’ rights.
What Do Courts Look For When Granting Step Parents Guardianship?
Under The Family Code, the court in deciding whether or not to approve a Request for Appointment of Guardian ("Request") considers the following:
(a) The ages and needs of the minors.
(b) The nature, size, and location of the proposed guardian’s estate.
(c) The relation of the proposed guardian to the wards.
(d) The ability of the proposed guardian to care for, educate, and provide for the future needs of the wards.
(e) Any wishes and concerns of the wards.
(f) Recommendations of the social study and investigations as to the proposed guardian’s suitability, the competency of the proposed guardian to manage the wards’ earnings, and the care and protection of the wards.
(g) Recommendations from the parents or persons who have had the principal care and custody of the wards.
(h) Any expressed desires of the parents or persons who have had the principal care and custody of the wards.
(i) The character and fitness of the proposed guardian.
(j) Any other factors the court considers to be relevant.
The court will always consider, of course, the child’s best interest when a request is made to establish guardianship. The court also looks to the family unit so that appointing jurist does not disrupt those existing units. In addition, the court will not appoint a mountain of guardianship over a minor where it will be inappropriate due to the individual circumstances of the case.
Lastly, the court shall consider the preexisting relationship between the child and the proposed guardian. Also the court shall consider the relationship of the biological parents to the child and the effects that the granting of guardianship will have on the child’s biological parents.
The Pros and Cons of Step Parent Guardianship
Many people take on the role of stepparent over the years — especially for blended families that come together after divorce. A few additional legal considerations may come into play if you are the biological parent or a step parent for a child that has either lost their biological parent or is sharing residency in a shared custody arrangement. It may not always make sense that a step parent would become a legal guardian for a child, but there are certain advantages to step parent guardianship. Most parents by law are automatically given their parental rights over their biological children, but it may be a good idea to make it more official if you have been a step parent for a long time.
Step parents and legal guardianship gives you the same rights over a child that a biological or adoptive parent has. You can participate in day-to-day decision-making that includes choices about schooling, discipline, health care , etc. This also means that children count on your tax returns similar to a biological child. In some states this designation may even apply to a stepchild who lives outside the home, but you may not be paying the tax benefits to the child in this situation. Step parent and legal guardian for a child designated may also make important decisions for the child in the event of a serious injury and hospitalization. Just as if you were a biological parent, hospitals may require a notarized statement authorizing medical decisions to be applied in the event of an illness or medical emergency.
There are some limitations that apply under the law. For example, the biological or adoptive parent may not have full parental rights. So custodial parents will most likely have to give up some control over the child in the event of a divorce or a separation through the courts. Parents who share joint physical or joint legal custody may have to agree to reassess custody and visitation rights. Most states already consider visitation rights for step parents under respective laws.
Step Parent Guardianship Alternatives
While establishing legal guardianship is one way for step parents to have a legal say over their step children’s care, control and custody, it is far from the only option. Even more so than biological parents, a step parent has a vested interest in what happens to a child in case of an unexpected life event. Step parents may be able to circumvent the guardianship process by having parental responsibility in the form of a power of attorney. Otherwise, adoption of the child may be an appropriate alternative to establishing legal guardianship.
Power of Attorney
If both biological parents are alive and willing to agree to grant long-term care benefits to a step parent, a durable power of attorney can be established. This will give the step parent authority to make decisions regarding health care and finances for the child.
Power of Attorney documents can be tailored to specific, short-term needs, or be drafted to last for an indefinite period of time (though such documents must be signed while the parents are competent). This will allow a step parent to make decisions regarding the child in their care without going to court or having to establish guardianship.
Adoption
As stated above, a guardianship does not grant the same rights as parenthood. The best way to ensure that a step parent has the same legal rights to a child as the biological parent is for the step-parent to adopt the child. In these cases, the biological parent’s rights and responsibilities are terminated when the court issues an adoption decree.
To establish a valid adoption by a step parent, several things must occur:
While this process is certainly more labor intensive than establishing a legal guardianship or obtaining a power of attorney, it is by far the most effective way for a step parent to assume parentage of a child in their care.
Example Cases and Scenarios
A case in Utah involved a step-mother who had served as her step-son’s primary caregiver for several months while her husband was stationed overseas. Her step-son’s biological parents were divorced, and her husband was both in the Navy and deployed for 20 months out of their son’s first year of life. When her husband returned from deployment, he was granted visitation rights with his son. However, as a courtesy to her husband, she remained the primary caretaker of their son due to her step-son’s special needs. Prior to the initial divorce settlement, she had one son and her husband had one. Together they had two children of their own. Over time, her husband continued to grow irritated by her desire to retain her son, as this meant that she would stop at nothing to keep her son. When her husband returned from deployment and demanded to have a greater role in parenting her son, she viewed this as inconsistent with prior agreements. Because their marriage began to falter, her husband threatened to obtain custody of their two children as well. As a result, she filed for legal guardianship of her step-son.
In another Utah case, a father who had visitation rights for his child over the first two years of the child’s life had his rights scaled back to near the point of termination. For the next six years, the father petitioned for legal guardianship. His reasoning was that he had obtained stable employment , his own residence and a stable lifestyle. 6 months before the ruling, he married a woman whose children were already grown. The father was granted legal guardianship, although it was for a period of 2 years.
A recent case in California involved a mother and her boyfriend. The boyfriend had lived with the mother and her daughter for over a year when the mother moved out. The boyfriend continued to raise the child during this time. California courts decided to deny the boyfriend legal guardianship. The court opined that the boyfriend had not developed a bond strong enough to satisfy the court that a bond of parent and child existed. The ruling was upheld, even when evidence was presented that he was an involved person in the child’s life. The court reasoned that this children had a father and that the boyfriend’s involvement was not strong enough that he was assumed a part of the children’s life.
A further California case, completed in August of this year, a paternal grandmother was given legal guardianship of two minor children. The children had lost their mother to suicide, and their father was unable to care for them. The grandmother had been the person the children confided in. The father was currently intoxicated by alcohol. The grandmother, who was estranged from her son, was given legal guardianship of his children.