Chandler guardianship lawyer
Helping people in Gilbert, Mesa, Tempe and the rest of the Phoenix Valley with guardianship and other family law matters
There are times when someone other than a child’s mother or father must step in to care for him or her. This is called guardianship or sometimes custodianship. It may even be termed in loco parentis, which is Latin for standing in place of the parents. These concepts have different meanings under Arizona family law, and it is important to understand the distinctions. Regardless, such proceedings can be complex. That’s why it is important have a Chandler guardianship lawyer on your side every step of the way, no matter whether you are a parent facing this situation or a non-parent wanting to gain custody of one of more children.
Definition of guardianship or custodianship
Guardianship or custodianship usually arises when neither legal parent, whether biological or adoptive, is able to adequately provide “care, custody and control” of a child. The parents may be incarcerated, on drugs, in rehabilitation, or otherwise unwilling to parent. Sometimes parenting abilities are not even an issue. The parents may both be deceased or, because of circumstances beyond their control, may not be able to care for the child or children for a certain period of time for reasons such as military service, disability, illness, or caring for a sick relative who lives out of state.
The process may begin when a concerned bystander calls the police or Child Protective Services (CPS), an arm of the Arizona Department of Economic Security (ADES), to report alleged neglect or abuse of a child by one or both parents. Other times the parents refer themselves, admitting that they cannot properly care for the child. If an investigation substantiates the allegations, the court temporarily takes over legal custody and ADES physically places the child with a relative, friend, or foster parents, or in a group home.
Who can be a guardian or custodian
A guardian can be any adult who is capable of serving as a surrogate parent, either temporarily or permanently, because he or she is in a better position to give the child the time, attention, bonding, love, support, patience, guidance, and discipline needed to be healthy, happy, and well-adjusted.
If the child is or could be enrolled in a federally recognized tribe, the Indian Child Welfare Act (ICWA) comes into play. ICWA requires that placement must be with, in order of preference, a family member, tribal member, member of another tribe, or non-native family.
If the child lives in a different state from the proposed custodian, custody proceedings usually must begin in the state where the child lives, not where the custodian lives. Regardless, a family court judge decides who gets guardianship, whether permanent or temporary. The judge determines whether the proposed placement is in the best interests of the child.
Whether both parents must agree to a guardianship or custodianship
If a parent is alive and reachable, he or she must receive notice when CPS intervenes or a non-parent petitions the court for custody of one or more of the parent’s children. Sometimes the parent is easy to locate. Sometimes he or she is not. This may happen when the parent is incarcerated or deliberately trying not to be found.
If both parents participate in the legal process from the beginning, the transition is much easier and quicker. It is simplest when both parents agree to the proposed guardianship or custodianship. Of course, custodianship by consent is much less common than contested proceedings.
What a guardian or custodian do can or must do
The guardian or custodian must put a roof over the child’s head, provide the child with his or her own bed, clothes to wear, and food to eat. The guardian or custodian can seek and obtain any medical treatment that might be needed for the child. But he or she must notify the parents of any medical emergencies and share any health information, unless the guardianship has been made permanent. Even then, the guardian or custodian may be required to allow the parents visitation or parenting time and to exercise certain other rights, as long as their parental rights have not been terminated.
Temporary versus permanent guardianship
Temporary guardianship is used when there is an emergency or unforeseen situation affecting the life or health of the child, such as when both parents die simultaneously. It also can be used for physical-only guardianship when the parent is unavailable for a time but is not giving up his or her parental rights and responsibilities permanently.
Permanent guardianship typically is awarded when the parents are deceased or fail to get their act together after their children are taken away from them and a temporary guardianship is awarded to someone else. Often, permanent guardianship is a precursor to termination of parental rights followed by adoption, the most permanent situation possible. Any guardianship of a minor child ends when the child comes of age or becomes an emancipated minor.