Faith Jansen Law & Mediation

GUARDIANSHIP OF THE PERSON OF A MINOR CHILD (PRIVATE GUARDIANSHIP)

Petition for Guardianship

A petition for Guardianship of the Person starts a legal action in which the Probate Court is asked to award physical custody of a minor child (the proposed ward) to a non-parent. The petitioner may be the proposed guardian, an interested party nominating someone else to be the guardian, or the proposed ward if he or she is at least twelve years old. The proposed guardian must be an adult at least eighteen years of age. If the child has an estate, a separate petition for Guardianship of the Estate must also be filed. Often a different person from the child’s physical guardian is appointed to serve as guardian of the child’s estate.

The Court Process

The filing of a petition for Guardianship of the Person causes the Court to set an initial review hearing and triggers a referral to the Probate Investigation Unit, a group of social workers employed by the Court who interview the child, the proposed guardian, the parents, family members, and all other interested parties. The Probate Investigator files a written report in the court file, describing the facts of the case and making a recommendation. The final decision to grant or deny the guardianship rests with the Court. If the proposed guardian or child’s parents disagree with the recommendation, they have a right to a trial. The Court may also appoint an attorney to represent the child (Minor’s Counsel). In urgent situations, the Court may grant a pre-trial Temporary Guardianship of the Person at the beginning of the case.

Who May Serve as Guardian of the Person?

The Guardian of the Person may be a relative or other adult who has assumed caretaker responsibilities for the child. It is easier to obtain an Order for Guardianship of the Person in cases where the child has been primarily living with the proposed guardian for at least four months preceding the filing of the petition.