How to Change from Temporary to Permanent Guardianship
Identify why the guardianship should be permanent., Meet with a lawyer., Check if you meet requirements for a permanent guardian., Ask for the regular caretaker’s consent., Complete required paperwork., File the paperwork with the court., Notify...
Step-by-Step Guide
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Step 1: Identify why the guardianship should be permanent.
In order to change to a permanent guardianship, you need to explain to a judge why the parents cannot take care of their child once the temporary guardianship has ended.If you want permanent guardianship of an incapacitated adult, then you should also be able to explain why.
There might be many reasons, including any of the following:
The parents have died.
This might be the most obvious reason why a temporary guardianship should be made permanent.
The parents have disappeared.
The parents aren’t getting out of jail.
You might have gotten temporary guardianship while the parents were in jail.
They might get additional time for crimes committed in prison.
An adult’s regular caretaker cannot take care of them. -
Step 2: Meet with a lawyer.
Guardianship law differs by state, and you will need to comply with your state’s laws.
For that reason, you should make an appointment with an attorney to discuss how you can get permanent guardianship.You might have met with a lawyer before obtaining temporary guardianship.
If so, then schedule another appointment with the lawyer.
If you’ve never met with a lawyer, then you should get a referral from your local or state bar association.Ask for a family law attorney. , Talk to the attorney about whether you qualify as a permanent guardian.
States have different requirements.
For example, in Delaware, only the following people may apply to become a permanent guardian for a child:
Guardians who have held guardianship for at least six months.
If you were a temporary guardian for less than six months, then you would need to talk with the attorney about possible next steps.
Foster parents.
A relative, such as an immediate family member, aunt, uncle, first cousin, grandparent, etc. , You should try to get the parents to consent to your permanent guardianship.
Explain the situation and stress that it is in the child’s best interest to stay with you since moving to a new home would be disruptive.
If the parents consent, then there may be a form they can fill out.
If you are the temporary guardian for an adult, then you should speak to their regular caretaker.
Try to get their permission. , You can typically apply for permanent guardianship by filling out some printed forms, which you can pick up from the court clerk.
There will probably be several forms to fill out, so ask the clerk for everything.If the forms are available on the court’s website, then you might be able to download them and type information directly into the form before saving it.
However, some forms will need to be filled out by hand.
Try to write as neatly as possible using black ink. , Make several copies of the completed forms and then take the copies and the original to the court clerk.
Ask to file the original.
The clerk may need one or more copies as well.
Always keep a copy for your records.
You will probably have to pay a fee to file the forms.
The amount will differ depending on the court.
If you can’t afford the fee, then ask for a fee waiver form., If you can’t get consent, then you need to notify the parents that you have applied for permanent guardianship.You can generally do this by sending them a copy of your guardianship petition.
You may also have to notify other people, such as the child (if they are old enough) or anyone else as directed by the court.You can generally serve copies by having the sheriff make hand delivery on each person who is entitled to notice.
The sheriff should charge a small fee for each delivery.
In some courts, you can also send the papers certified mail, return receipt and restricted delivery. , After receiving your petition, the parents have an opportunity to respond.
They should send you a copy of their response after filing it with the court.
If you have a lawyer, your lawyer should get the copy.
Read it closely.
The document should explain why the parents object to the permanent guardianship.
Generally, the parents will probably argue that they can take care of the child.
It’s always possible that they will agree that you should be the permanent guardian.
In this situation, the process will usually be simpler.For example, you will not have a contested hearing but a more informal one.
Furthermore, if the current caretaker is dead, then your request for a permanent guardianship may be unchallenged. , In some states, a court will require that you meet with a social worker to be interviewed.
The purpose of the interview is to help the court determine whether you are a suitable permanent guardian for the child.
The social worker prepares a report for the court, which often contains information about the following:
The child’s background.
The child’s mental and physical health.
Your home where the child will stay.
Whether you meet the requirements to be a permanent guardian.
A recommendation about whether you should become the permanent guardian. , You should probably hire a lawyer if someone is contesting your permanent guardianship application.
If you are seeking permanent guardianship of a child, then the parents will probably have a lawyer.
You will be at a disadvantage if you don’t have one as well.
Money might be tight.
However, in some courts, you can get a court-appointed lawyer if the child has been living with you.You should ask the clerk or judge if an attorney is available.
You might also qualify for legal aid if your income is low enough.
Legal aid organizations provide free or reduced-fee legal representation to people with incomes less than 125% of the federal poverty level.
You can find legal aid by visiting the Legal Services Corporation’s website here: http://www.lsc.gov/. , A judge will make a decision based on the “best interests of the child.” These interests are a group of factors which a judge has to balance.
There is no bright-line test for what is in the child’s best interests.
Instead, the judge weighs all of the factors.
You should go through each factor and explain how the factor favors permanent guardianship:
The child’s emotional ties with you and their parents is an important factor.
If the child has been living with you for a long time, then you might have grown quite close.
Another factor is the ability to provide for the child, including food, shelter, and medical care.
You should be able to explain how the parents cannot provide these necessities.
The mental and physical health needs of the child is another factor.
Your ability to provide a loving and safe home is helpful here.
A judge also looks at the mental and physical health needs of the parents.
Here, you can emphasize why they can’t take care of the child.
For example, they may be sick or continue to suffer from a drug addiction.
In some states, the child’s wishes are also considered. , You should also present documents or have witnesses testify that help you prove that becoming permanent guardian is in the child’s best interests.
For example, look for the following:
You can show that you meet the child’s physical and mental needs to showing that the child flourishes at school.
Gather report cards and letters from teachers.
You can document that the child has not kept in contact with the parents by noting the dates they were supposed to visit but didn’t. , You should make sure to arrive to your hearing early so that you can find parking and go through courthouse security.
Make sure that you don’t bring any food or drinks into the courthouse.
Have a copy of every paper filed in the case.
This includes your petition, the other side’s response, etc.
Also have copies of any document you want to introduce into evidence.
For example, if you want to show the judge the child’s report cards, then have the original card and several copies. , Because you applied for guardianship, you should go first.
You can have witnesses testify on your behalf.
You may also need to testify.
If the judge or the other side’s lawyer asks you questions, remember the following:
Avoid being argumentative.
Try to keep your voice level.
Listen to the questions.
If you don’t understand something, then ask for clarification.
Never guess.
If you don’t know something, then say so. , The other side is given the opportunity to counter your arguments and present witnesses in support.
You should listen quietly as they testify.
You may also have the chance to cross-examine them. , After all evidence has been presented, the judge will make a decision whether to grant you permanent guardianship.If you disagree with the decision, you should talk to an attorney about whether to appeal. , You need to accept the permanent guardianship, and you can do so by signing and filing certain paperwork, e.g., an “acceptance of guardianship.”Ask the court clerk for the form.
Keep a copy of every form that you file with the court for your own records. -
Step 3: Check if you meet requirements for a permanent guardian.
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Step 4: Ask for the regular caretaker’s consent.
-
Step 5: Complete required paperwork.
-
Step 6: File the paperwork with the court.
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Step 7: Notify others that you have filed.
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Step 8: Read the parents’ response.
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Step 9: Meet with a social worker.
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Step 10: Hire a lawyer.
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Step 11: Argue permanent guardianship is in the child’s best interests.
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Step 12: Find supporting evidence.
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Step 13: Arrive at court prepared.
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Step 14: Make your argument.
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Step 15: Listen to the other side’s argument.
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Step 16: Receive the judge’s order.
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Step 17: File an Acceptance of Guardianship.
Detailed Guide
In order to change to a permanent guardianship, you need to explain to a judge why the parents cannot take care of their child once the temporary guardianship has ended.If you want permanent guardianship of an incapacitated adult, then you should also be able to explain why.
There might be many reasons, including any of the following:
The parents have died.
This might be the most obvious reason why a temporary guardianship should be made permanent.
The parents have disappeared.
The parents aren’t getting out of jail.
You might have gotten temporary guardianship while the parents were in jail.
They might get additional time for crimes committed in prison.
An adult’s regular caretaker cannot take care of them.
Guardianship law differs by state, and you will need to comply with your state’s laws.
For that reason, you should make an appointment with an attorney to discuss how you can get permanent guardianship.You might have met with a lawyer before obtaining temporary guardianship.
If so, then schedule another appointment with the lawyer.
If you’ve never met with a lawyer, then you should get a referral from your local or state bar association.Ask for a family law attorney. , Talk to the attorney about whether you qualify as a permanent guardian.
States have different requirements.
For example, in Delaware, only the following people may apply to become a permanent guardian for a child:
Guardians who have held guardianship for at least six months.
If you were a temporary guardian for less than six months, then you would need to talk with the attorney about possible next steps.
Foster parents.
A relative, such as an immediate family member, aunt, uncle, first cousin, grandparent, etc. , You should try to get the parents to consent to your permanent guardianship.
Explain the situation and stress that it is in the child’s best interest to stay with you since moving to a new home would be disruptive.
If the parents consent, then there may be a form they can fill out.
If you are the temporary guardian for an adult, then you should speak to their regular caretaker.
Try to get their permission. , You can typically apply for permanent guardianship by filling out some printed forms, which you can pick up from the court clerk.
There will probably be several forms to fill out, so ask the clerk for everything.If the forms are available on the court’s website, then you might be able to download them and type information directly into the form before saving it.
However, some forms will need to be filled out by hand.
Try to write as neatly as possible using black ink. , Make several copies of the completed forms and then take the copies and the original to the court clerk.
Ask to file the original.
The clerk may need one or more copies as well.
Always keep a copy for your records.
You will probably have to pay a fee to file the forms.
The amount will differ depending on the court.
If you can’t afford the fee, then ask for a fee waiver form., If you can’t get consent, then you need to notify the parents that you have applied for permanent guardianship.You can generally do this by sending them a copy of your guardianship petition.
You may also have to notify other people, such as the child (if they are old enough) or anyone else as directed by the court.You can generally serve copies by having the sheriff make hand delivery on each person who is entitled to notice.
The sheriff should charge a small fee for each delivery.
In some courts, you can also send the papers certified mail, return receipt and restricted delivery. , After receiving your petition, the parents have an opportunity to respond.
They should send you a copy of their response after filing it with the court.
If you have a lawyer, your lawyer should get the copy.
Read it closely.
The document should explain why the parents object to the permanent guardianship.
Generally, the parents will probably argue that they can take care of the child.
It’s always possible that they will agree that you should be the permanent guardian.
In this situation, the process will usually be simpler.For example, you will not have a contested hearing but a more informal one.
Furthermore, if the current caretaker is dead, then your request for a permanent guardianship may be unchallenged. , In some states, a court will require that you meet with a social worker to be interviewed.
The purpose of the interview is to help the court determine whether you are a suitable permanent guardian for the child.
The social worker prepares a report for the court, which often contains information about the following:
The child’s background.
The child’s mental and physical health.
Your home where the child will stay.
Whether you meet the requirements to be a permanent guardian.
A recommendation about whether you should become the permanent guardian. , You should probably hire a lawyer if someone is contesting your permanent guardianship application.
If you are seeking permanent guardianship of a child, then the parents will probably have a lawyer.
You will be at a disadvantage if you don’t have one as well.
Money might be tight.
However, in some courts, you can get a court-appointed lawyer if the child has been living with you.You should ask the clerk or judge if an attorney is available.
You might also qualify for legal aid if your income is low enough.
Legal aid organizations provide free or reduced-fee legal representation to people with incomes less than 125% of the federal poverty level.
You can find legal aid by visiting the Legal Services Corporation’s website here: http://www.lsc.gov/. , A judge will make a decision based on the “best interests of the child.” These interests are a group of factors which a judge has to balance.
There is no bright-line test for what is in the child’s best interests.
Instead, the judge weighs all of the factors.
You should go through each factor and explain how the factor favors permanent guardianship:
The child’s emotional ties with you and their parents is an important factor.
If the child has been living with you for a long time, then you might have grown quite close.
Another factor is the ability to provide for the child, including food, shelter, and medical care.
You should be able to explain how the parents cannot provide these necessities.
The mental and physical health needs of the child is another factor.
Your ability to provide a loving and safe home is helpful here.
A judge also looks at the mental and physical health needs of the parents.
Here, you can emphasize why they can’t take care of the child.
For example, they may be sick or continue to suffer from a drug addiction.
In some states, the child’s wishes are also considered. , You should also present documents or have witnesses testify that help you prove that becoming permanent guardian is in the child’s best interests.
For example, look for the following:
You can show that you meet the child’s physical and mental needs to showing that the child flourishes at school.
Gather report cards and letters from teachers.
You can document that the child has not kept in contact with the parents by noting the dates they were supposed to visit but didn’t. , You should make sure to arrive to your hearing early so that you can find parking and go through courthouse security.
Make sure that you don’t bring any food or drinks into the courthouse.
Have a copy of every paper filed in the case.
This includes your petition, the other side’s response, etc.
Also have copies of any document you want to introduce into evidence.
For example, if you want to show the judge the child’s report cards, then have the original card and several copies. , Because you applied for guardianship, you should go first.
You can have witnesses testify on your behalf.
You may also need to testify.
If the judge or the other side’s lawyer asks you questions, remember the following:
Avoid being argumentative.
Try to keep your voice level.
Listen to the questions.
If you don’t understand something, then ask for clarification.
Never guess.
If you don’t know something, then say so. , The other side is given the opportunity to counter your arguments and present witnesses in support.
You should listen quietly as they testify.
You may also have the chance to cross-examine them. , After all evidence has been presented, the judge will make a decision whether to grant you permanent guardianship.If you disagree with the decision, you should talk to an attorney about whether to appeal. , You need to accept the permanent guardianship, and you can do so by signing and filing certain paperwork, e.g., an “acceptance of guardianship.”Ask the court clerk for the form.
Keep a copy of every form that you file with the court for your own records.
About the Author
Paul Wells
Committed to making cooking accessible and understandable for everyone.
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