Legal guardianship of a grandchild?
BY KYLE PERSAUD
You have a grandchild, and you believe that your grandchild may be in danger. You feel that you need a guardianship. You may wonder: Can I get legal guardianship of my grandchild?
What is a guardian?
A guardian stands in loco parentis (in place of a parent) over another person. A guardian has the legal right to make decisions just as a parent would; for example, a guardian may enroll a child in school, or get medical care for the child. In many cases, a court appoints a guardian for a child if the child’s parents are deceased, or unable to care for the child.
When can a grandparent get legal guardianship of a grandchild?
The U.S. Supreme Court has held that parents have a constitutional right to direct the upbringing of their children and that therefore, any legal action that impedes a parent’s rights, must not be arbitrary, and must conform to certain standards. Because a grandparental guardianship impedes a parent’s rights, a court must adhere to certain constitutional norms before the courts grants guardianship. Consequently, almost all states have laws stating that, for grandparents to obtain guardianship over their grandchildren, the grandparents must first prove that the parents are unfit. To get guardianship, a grandparent cannot merely show that the grandparent would be better at raising the child than a parent would; rather, the grandparent must show that the parents are unfit.
Although the Supreme Court has established that parents have the fundamental right to bring up their children, the Supreme Court has allowed states considerable latitude in deciding precisely how to provide parents this right. Thus, guardianship law differs in every state. If you need a guardianship, consult a lawyer in your home state.
How to get a guardianship
In most states, you have to go to court and ask a judge to appoint you guardian. Because the process for obtaining guardianship can be quite complex, you don’t want to handle it yourself. The procedure for obtaining a guardianship is different in every state, so ask a lawyer in your state how to proceed.
Although the procedure for being appointed guardian is different in every state, there are some standards that all states must follow. For example, the Supreme Court has ruled that you have to give the parents notice of the guardianship proceeding, and the parents must have an opportunity to appear in court and defend themselves. This means that if you apply for a guardianship and the parent(s) object, you will likely have to go to trial before a judge.
If your grandchild is in danger and needs a guardian, don’t wait. Do what you need to do to protect your grandchild. Contact a guardianship attorney in your state today.
ABOUT THE AUTHOR
Kyle Persaud founded Persaud Law Office to assist the residents of Bartlesville, OK, and surrounding areas, with their legal needs. Mr. Persaud practices in a wide variety of family law issues including guardianship law. Mr. Persaud received his B.A. from Oklahoma Wesleyan University and his law degree from the University of Tulsa.
Read more in GRAND about guardianship here