Guardianships for Minor Children

A guardianship may be necessary for a minor child if the child’s parent or parents are unable to care for their child. This may be due to short-term and temporary circumstances, such as the incarceration of the parent or a parent traveling outside the United States for a period of time. In these types of situations, the length of time the guardianship will be necessary is known.

Guardianships may also be necessary when a parent is unable to care for their child for reasons that may not be short-term or easily monitored. This may be seen when a parent is struggling with addiction, mental health concerns, or other instability. In these circumstances, it is harder to recognize when the need for a guardianship is no longer necessary, or when a modification of the guardianship may be necessary.

When a Court analyzes whether a guardianship should be modified or terminated, the best interest of the child is the paramount consideration for the Court. The Court may terminate a guardianship if the guardianship is no longer necessary for any reason, as long as the termination is in the child’s best interest. In guardianship modifications, the Court considers the same factors that are considered in custody modifications. The Court may modify a guardianship if the modification is in the child’s best interests and there has been a significant change in one of the statutory child-custody factors. Those factors are:

1. The age and sex of the child.

2. The wishes of the child's parents.

3. The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.

4. The interaction and interrelationship of the child with:

   1. the child's parents;

   2. the child's siblings; and

   3. any other person who may significantly affect the child's best interest.

5. The child's adjustment to home, school, and community.

6. The mental and physical health of all individuals involved.

7. Evidence of a pattern of domestic or family violence by either parent.

8. Evidence that the child has been cared for by a de facto custodian.

The Court also has the power to remove a guardian and appoint a successor guardian. A removal of a guardian may become necessary if the Guardian has breached his or her fiduciary duty or if the Guardian has not properly cared for the child or mismanaged the child’s assets.