Every child has the right to be loved and cared for. Sometimes, though, parents are unable or unwilling to care for their children. What can a person do if they want to help a child in this situation? One option is filing a petition for minor guardianship.
A guardian is a person who is appointed by the court to take custody of a child and be responsible for the child’s wellbeing. Guardians agree to raise and make decisions for the child.
Any responsible person who has knowledge of the facts regarding the welfare and best interests of a child is eligible to become the child’s guardian, subject to the court’s discretion (see below).
In my experience, a guardian is usually a family member – aunts, uncles, and grandparents seem to be the most common.
JURISDICTION AND VENUE
A petition for guardianship can be filed in either circuit court or family court. The petition needs to be filed in the county where the child has resided for the past six months, unless there are extraordinary circumstances.
WHEN MAY THE COURT APPOINT A GUARDIAN?
Per W.Va. Code §44-10-3, a judge may appoint a guardian for a minor if it is in the child’s best interest to do so, and at least one of the following applies:
(1) The parents consent;
(2) The parents' rights have been previously terminated;
(3) The parents are unwilling or unable to exercise their parental rights;
(4) The parents have abandoned their rights by a material failure to exercise them for a period of more than six months; or
(5) There are extraordinary circumstances that would, in all reasonable likelihood, result in serious detriment to the child if the petition is denied.
The most common scenarios I see involve parents who are incarcerated or addicted to drugs.
HOW DOES THE COURT DECIDE IF A PERSON IS QUALIFIED TO BE A GUARDIAN?
Per Rule 10 of the West Virginia Rules for Minor Guardianship Proceedings, the court, when determining an appropriate guardianship appointment over the person of a minor, shall ascertain and consider, among other pertinent matters, whether any proposed guardian:
(1) Is required to register as a sex offender;
(2) Has a record of any misdemeanor or felony convictions;
(3) Has ever been subject to a restraining order or final protective order;
(4) Has ever been the subject of any substantiated report alleging child abuse, neglect, or molestation made to any child protection agency, other law enforcement agency, or court in any jurisdiction;
(5) Habitually uses any illegal substances or abuses alcohol; or
(6) Has another person living in the home that involves any of the matters stated above.
WHAT MUST THE PETITION CONTAIN?
A petition for guardianship must include the following:
(1) Full name, date of birth, and residence address;
(2) A statement supporting venue in the county of filing;
(3) A statement indicating whether guardianship over the person or estate (that is, the minor’s property and finances), or both, is sought;
(4) The name and last known address of the minor's father and mother, further stating whether each parent is living, deceased, or his or her parental rights have been terminated;
(5) If the minor does not reside with a parent, the name and address of the current custodian or custodians;
(6) A statement describing the reason or reasons why the guardianship appointment is sought;
(7) The places where the minor has lived during the last five years, or since birth if the minor is less than five years of age, and the names and present addresses of the persons with whom the minor lived during that period;
(8) A description of any past or current proceeding involving the minor's custody, identified by court, location, case number, and type of proceeding;
(9) The name and address, and relationship if any, of the proposed guardian or guardians;
(10) A statement affirming the competency and fitness of each proposed guardian, further attesting that the welfare and best interest of the minor will be properly protected by the appointment;
(11) If appointment over the minor's estate is sought, a description and estimated value of all real property and other assets in the minor's estate;
(12) A description of any anticipated periodic payments due to or on behalf of the minor, including but not limited to child support and government benefits; and
(13) A statement as to whether appointment of a curator or temporary guardian is needed to protect the welfare and best interests of the minor until a guardian is appointed and qualified to act.
HOW LONG DOES GUARDIANSHIP LAST?
Guardianship can last anywhere from six months to the child’s 18th birthday. Unlike an adoption, a guardianship is not necessarily permanent, and a parent who gets their act together as time goes by can petition the court to terminate the guardianship. The guardian can also ask the court to terminate the guardianship in rare circumstances.
WHAT IF THE GUARDIANSHIP IS NEEDED ON AN EMERGENCY BASIS?
If a scenario arises in which the child needs to be removed from the parents’ home as quickly as possible, a potential guardian can file a petition for an ex-parte order granting temporary guardianship. This means the judge can appoint the guardian on a temporary basis, even if the parents have not had a chance to respond to the petition or appear in court. If a temporary guardianship is granted this way, the parents will have an opportunity to appear in court and plead their case at a future date.
If the situation giving rise to the petition is serious enough, the judge has the option of referring the case to the DHHR to see if Abuse and Neglect proceedings are appropriate. Abuse and Neglect cases can result in parental rights being permanently terminated.
HOW CAN I GET HELP FILING A PETITION?
If you think you might want to pursue a minor guardianship, you need the benefit of an attorney who has experience with guardianship cases and who isn’t afraid to tell the court exactly why the parents are not up to the task of raising their child.
Give me a call at (304) 699-0107 or contact me online through Facebook, email, or our secure Online Consultation Form. You can also stop by the office at 601 Avery Street, Suite 100 in Parkersburg to schedule a free consultation.