What do I need know about guardianship of my granddaughter?

Recently on our legal forum a user asked, “My daughter had a baby out of wedlock. She is currently addicted to drugs. Her boyfriend’s no better. He comes in and out of her life periodically and is always drunk or high. He has no interest in caring for his baby daughter. I am wondering what I need to know about guardianship? She’s been living with me for almost a year.”

What does guardianship mean? 

Before agreeing to guardianship of your granddaughter it’s important that you understand what you are agreeing to do for the child. If the courts decide to give you guardianship of your granddaughter you will be responsible for the child’s emotional, physical, and social well-being either temporarily or permanently.

Note: permanent guardianship is generally only granted if the both parents have died or their parental rights are terminated.  the legal scope of your responsibilities might vary somewhat by state. For this reason, it’s important to talk to a lawyer before agreeing to this arrangement. 

How can I establish guardianship?

Courts have consistently ruled that parents have the legal right to care and determine what is in their child’s best interest. For this reason, it’s much easier to get guardianship if both parents voluntarily assign you as the temporary guardian.

You asked how you could gain guardianship of your grandchild. Although it does sound like both parents may not be fit to care for the child, you did not mention whether the court had made this decision or not.

So, if the parents do support you as the temporary guardian it’s likely that they will retain their rights throughout the arrangement, which means they may choose to terminate the arrangement at any time.

Additionally, if they do decide to allow you to be the temporary guardian they will generally also retain the right to visit their child, although visitation and interaction might be controlled or supervised if the court deems it necessary for the safety of the child.

Parents may also be required to pay you child support to care for their child.

Gaining custody without the consent of the parents?

As mentioned above, courts generally favor parents having the legal right to care for their own children. Unfortunately, however, there are times when the court will decide that a child’s needs cannot be met within their own home with their own parents. Given the situation you described, this could be the case with your grandchild. Common reasons the courts will designate another guardian without the consent of the parents include the following:

• The court deems both parents unfit to care for the child.
• The court finds that the child has been neglected or abused in the parent’s home.
• The parents suffer from mental illness.
• Both parents have an alcohol and/or drug problem.
• One parent is unfit and the other parent refuses to care for the child. 

Although the courts will consider a variety of options for guardianship, the fact that your granddaughter has been living with you may be one factor in your favor. It’s important to note, however, that state laws vary. In fact, in some states a grandchild must be in your care for at least a year before you can petition for custody.

Bottom line:

Courts generally try to keep children with their parents. If a court does grant guardianship to another person it is generally only temporary unless the parents are dead or the courts have terminated the rights of the parents. In this situation, grandparents can be given permanent guardianship until the child reaches 18 years of age or the state’s age of majority. The most important factor for determining guardianship, however, is what is in the best interest of the child.