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How to obtain legal guardianship of a child

Updated February 21, 2019

There are two types of proceedings through which you can obtain legal guardianship of a minor child. First, a voluntary guardianship is a possibility. Second, a legal guardianship of a child can be a established in certain situations over the objection of the parent or parents of that minor. The laws and procedures regarding establishing custody vary slightly from one state to another. However, the basic elements of child guardianship law and procedure are similar across the United States.

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  1. Obtain an affidavit from the parent or parents setting forth the need to establish a guardianship for their child. For example, if the parent is deploying overseas on a military tour of duty, she may desire to establish a guardianship to ensure the protection of the interests and welfare of her child. A voluntary guardianship presumes that neither parent is available to care for the child.

  2. Obtain a petition-for-guardianship form from the clerk of the court in the county where the child resides.

  3. Complete the motion, setting forth the facts surrounding the need for the guardianship.

  4. Attach the affidavit executed by the parent or parents to the petition for guardianship.

  5. File the petition with the clerk of the court.

  6. Request a hearing date from the court clerk or the judge.

  7. Appear at the hearing together with the parent or parents. The court is not likely to request a home study, assuming that a parent or parents know the proposed guardian and would not intentionally put a child in harm's way. Due to the voluntary nature of the request, the court will grant the request for a guardianship.

  8. Request a petition for guardianship from the court clerk.

  9. Set forth the specific reasons why a guardianship of the child is necessary. For example, the parents might be labouring under substance abuse addiction rendering them unable to care for their child.

  10. File the petition with the clerk of the court.

  11. Ask the clerk to direct the sheriff to serve a copy of the petition on the parents of the child for whom a guardianship is sought.

  12. Obtain a home study. In the case of an involuntary guardianship the court is likely to request a home study unless the child has resided in the residence of the proposed guardian for an extended period of time. The judge's administrative assistant maintains a list of approved professionals who provide home studies.

  13. Schedule a hearing date with the court clerk or the judge's administrative assistant on the petition for guardianship of a minor child.

  14. Provide written notice of the hearing date and time to the parents of the minor child.

  15. File the completed home study with the clerk of the court. The home study must be completed before the hearing on the petition for custody.

  16. Appear at the hearing and present documents and witnesses that support your position regarding the need for a guardianship of the minor child.

  17. Tip

    Guardianship cases, particularly involuntary ones, are complex, challenging proceedings. Consider seriously engaging the services of a qualified attorney to represent you in such proceedings. Local and state bar associations maintain directories of attorneys in different practice areas. Contact information for these groups is available through the American Bar Association: American Bar Association 321 N. Clark St. Chicago, IL 60654-7598 312-988-5000 abanet.org

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Things You'll Need

  • Petition for guardianship

About the Author

Mike Broemmel

Mike Broemmel began writing in 1982. He is an author/lecturer with two novels on the market internationally, "The Shadow Cast" and "The Miller Moth." Broemmel served on the staff of the White House Office of Media Relations. He holds a Bachelor of Arts in journalism and political science from Benedictine College and a Juris Doctorate from Washburn University. He also attended Brunel University, London.

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