Legal Definition of Guardianship
A "legal guardian" is a person who oversees the care and well-being of a child when separation from a parent has been found to be necessary or desirable. This can be done by court order through protective or other child custody proceedings, or by parental consent as when parents appoint a person to be their child’s legal guardian in the event of their death or incapacitation. If the designation is by will or other writing, the appointment must be signed in front of two witnesses. A parent can preserve his or her right to revoke the designation at any time by notifying the legal guardian that the appointment is revoked , and serving a copy of the notice on the person designated.
In Pennsylvania, except under limited circumstances or pursuant to a court appointment, parents are considered the guardians of their children. Thus, unless a parent has legally relinquished his or her custody rights and responsibilities of parenthood or was deprived of those rights and responsibilities through court action terminating those rights, he or she retains the primary responsibility for the care, control and management of his or her children. Subsequently, that parent may or may not appoint a legal guardian, with that appointment being subject to the Fortune Doctrine.
Parental Rights vs. Guardianship
The roles of parent and legal guardian are not synonymous, although concepts of guardianship have strong historic connections to the role of parents in the earlier common law. Parenthood is premised on notions of biology, genetic connection, and functional relationships with children but it is also a legal status with certain rights granted by the law. In contrast, while a parent may also be a legal guardian, a guardian need not be a biological parent. For example, a person may be appointed guardian over an individual with a disability and that person may or may not have any biological relation to that individual. In fact, Children’s Court orders regarding guardianship will often expressly prohibit the legal guardian from being a parent, or from having contact with a child. This can occur in instances where the orders limiting or terminating parental rights are involved, and they can occur in instances where the parent has surrendered her parental rights but the child is still a minor and legally subject to guardianship until her 21st birthday.
The law regarding the appointment of guardians is codified in the Guardianship and Administration Act 1995 (GAA). Applications for the appointment of a guardian are dealt with by the Guardianship List in the Victorian Civil and Administrative Tribunal. The Guardianship List hears cases related to guardianship and administration. Guardianship is like parenting in that it requires the legal guardian to make decisions for or act on behalf of an individual.
A guardian has the right and responsibility to make decisions for the individual over whom they have guardianship for matters relating to: Guardian appointments may also involve an individual already named in a Parent Responsible Agreement or consent order under the Family Law Act. These family law arrangements concerning children may be separate and independent from legal guardianship if there is no order providing for the appointment of a guardian.
Is Every Parent Automatically a Guardian?
Common law has long held the rule that a father is the guardian of his child, and the common law also made the mother the "next friend" of the child. This was codified and supplemented in 1956-57 when the General Assembly adopted, and eventually the Governor signed, what is now known as the Guardianship Code, at O.C.G.A. 29-4-1 et seq. The last time that particular law received any substantive change was in 1982 when the General Assembly did a complete revision in response to an extensive study and recommendation by a committee of the State Bar of Georgia.
The Code itself contains a number of exceptions and conditions, and we have written about them here, here, and here. In short, the Code provides that either a mother or a father shall be the natural guardian of an unmarried minor child, and if a parent dies before the child reaches age 18, then the surviving parent shall be the guardian until the child reaches 18. Even after appointment of a guardian or if both parents die, the surviving parent remains the natural guardian.
However, these rules are just a matter of convenience of language and procedure, because every parent is a legal guardian of his or her child by default. Just as divorce does not terminate the legal relationship between spouses (and children), it also does not terminate the legal relationship between parents and children. Regardless of whatever courts of probate do with this fact when they are appointing a temporary guardian for a minor, that appointment may be wholly excluded once one parent re-assumes physical custody of the child. Again, however, this is a convenience of procedure in the event a parent seeks someone else to be temporarily appointed.
Finally, if physical custody is given to someone other than a parent, that person will only be the guardian upon the grant of Letters of Guardianship. Georgia does not consider such a person to be a "guardian" even if the child is placed in his or her home.
When is a Parent Not a Legal Guardian?
The question of whether or not a biological parent is automatically a legal guardian for a child may seem like an obvious issue to address, but this is not always the case. There are several circumstances in which a parent is no longer granted legal guardianship over a child.
One such situation is adoption. When adoption occurs, the biological parent loses all parental rights to the child, and therefore his or her legal guardianship over the child is also terminated so that another person who is not the biological parent can take that role. Depending on the situation, the biological parent may or may not even be notified about the adoption. If not given notice, the parent cannot challenge the adoption and it proceeds as planned.
In addition to adoption, a court may step into the process and terminate parental rights of a biological parent. In such situations, the parent is still considered as such outside of the legal guardianship, but the rights of parenting, custody and guardianship over the child are given to another person.
State trusts and executions can also be executed, which are legal mechanisms that allow for individuals to give up their guardianship over the estate of an individual in the event of serious incapacitation. A primary directive is to enable this to happen if that person is unable to do so themselves.
How Does a Guardianship Order Affect Parental Rights?
An Order for Guardianship will Supersede Parental Rights
In many cases, parental roles are much more complicated than one parent being the custodial parent and the other parent being the non-custodial one. The bottom line is that, in the absence of a guardianship or a termination of parental rights, a parent is always a parent for as long as the child is living. The relationship might be restricted or even nonexistent in certain cases, but the parent relationship does not simply go away and any order saying otherwise will not be enforceable in the state of Maryland.
Of course, there can be some exceptions to that general parental rule, including the following: If you are a parent with one of the exceptions listed above, you remain a parent under Maryland law even if you are not exercising visitation (or have been denied visitation) or if your parental rights have been suspended such that you have no visitation.
As a parent, you cannot simply appoint a guardian for your child and then assume that you will no longer have any responsibilities or that you will no longer be the child’s parent . Putting a third person in charge of your child via a written legal document is meaningless even if the document is witnessed and notarized.
In short, parents cannot appoint guardianships for their children on their own. The parent can petition the court for guardianship of the parent’s own child, but the appointment of a guardianship over the child must be approved and issued by a judge.
When the Guardianship is Granted
Once a guardianship is approved by a judge, however, the role of the parent is entirely superseded by the role of the guardian. Parents will grant to the guardian the same powers and responsibilities that the parent had as the child’s parent. Those powers will include (but are not limited to) the following: Once the court appointments the guardian, that person has total control over the child’s life. While the appointment is in place, the parent cannot interfere with the daily care and custody of the child. The only way that a parent can resume a more traditional parenting role is to request that the court terminate the guardianship. Until the court actually issues the order terminating the guardianship, however, the previous parent has little authority, no custody and no legal rights over the child.
Legal Process to Obtain Guardianship Over a Child
"Parents will be the natural guardian of their minor children even if they have not provided for their care and custody." However, parents may need to take additional steps to formally secure the legal status of guardianship for their child if they are not automatically the legal guardian. This is often the case for unwed fathers, legal guardians agreed to under previous legal arrangements, or guardians set up in cases where the biological parent will not be the legal guardian.
Whether the parents are married or not, formalizing the process can be very important. This is especially true if the father has not yet established paternity. Unless he has executed an acknowledgment of paternity, he may be required to take steps to do so before he can assume the role of guardian. Florida law states that, "If a child’s father has failed to establish his paternity under ch. 742 during the child’s lifetime, has been adjudicated by a court of competent jurisdiction to have been the father of the child, or has executed an acknowledgment of paternity, an advanced directive made by or on behalf of the mother of the child prior to or during her pregnancy that names the child’s father as surrogate as authorized in this part is sufficient to grant the mother authority to consent to health care for a child who is born or conceived."
If the parent does not automatically qualify as the legal guardian of the child, they may need to petition the court to become the child’s legal guardian. The court will ask the petitioner to provide evidence that they are fit to parent the child. This includes information on the following: The process of petitioning the court for guardianship of a child requires a lot of legal documentation. The State has created a number of forms that deal with different aspects of establishing guardianship. Many parents choose to work with a guardianship attorney to get help completing the legal paperwork. An attorney can ensure that the correct forms are filed in the correct manner, and that the documentation supplied as evidence is sufficient to establish guardianship with either the court or any state agency overseeing the process.
Are Parents Internationally Considered Guardians?
To illustrate how the distinction between legal guardianship and parental roles can vary around the world, this chart from the U.S. State Department summarizes key distinctions in the legal framework of various countries.
The country of Mexico provides an interesting contrast to many other Latin American countries. In Mexico, it is the grandparents – not the parents – who are the immediate guardians of grandchildren when the family unit breaks down. The parents "lose their parental rights" due to divorce or death of a child, which does not automatically mean that the grandparents have a primary role in granular decisions about raising and educating the children. Rather, it is up to the adults deciding the divorce or separation to assign responsibility for care of the children , even if the grandparents would otherwise have the first priority to be the guardians of the children.
When parents and grandparents cannot reach such a determination on their own, the parents can name a third party to make decisions on behalf of the children.
Canada’s decision to legally enshrine parenting plans, or agreements on how to share a child’s time and responsibilities, into its Divorce Act was a landmark advancement for parental responsibilities. This type of law has become more common, however, with many countries specifically holding that a plan created by divorced parents or separated co-parents is entitled to deference by a court considering alterations of the plan. More than two-thirds of states in the United States have adopted similar principles in their own state laws, enabling citizens to decide how to share parenting responsibilities and time while still leaving ultimately decisions within the court system.