by Attorney Eric D. PuryearA guardianship is the legal process through which someone other than the parent of a child can legally care for the child. Guardianship are commonly used when a child’s parents are unable or unwilling to care for a child. For example, a relative may seek a guardianship of a child when the parent(s) are incarcerated, addicted to drugs to the point of being unable to care for the child, just not willing/able to parent, or deceased.
Guardianships are essential when caring for a child as a schools, hospitals, daycares, and other organizations will need to see evidence that the person who is not the parent but is caring for child is legally entitled to do so. Properly setting up a guardianship also prevents the problem of a parent who cannot care for the child showing up and taking the child back, as such situations can be quite harmful or even dangerous for everyone involved. Guardianships provide safety and stability for the child as well as the guardian.
Chapter 633 of the Iowa Code governs probate, to include guardianships. Guardianships can be full (plenary) or limited. A full guardianship, as the name suggests, is broader in scope than a limited guardianship, and a full guardianship is what is generally sought for children. Guardianships can also be voluntary or involuntary. Since children are minors who cannot consent, the guardianships sought for children are legally considered “involuntary” even in cases where the child does actually agree to the guardianship. Generally speaking, a guardianship will continue so long as the court finds that need for the guardianship exists.
Obtaining a guardianship of a child starts with reviewing the situation to determine what course of action is appropriate. In cases where the parent(s) agree to the guardianship, documents that show the parent(s) consent are prepared, which can make the guardianship process more efficient. In other cases, it is necessary to have a Guardian ad Litem (GAL), who is an attorney the court appoints, meet with the guardian and child and parent(s) to prepare a report that the court considers when evaluating whether a guardianship is proper. Eventually, there is a hearing (which may be brief or lengthy) where evidence is presented and the court determines whether the guardianship should be granted. The burden is on the person seeking the guardianship to show that the guardianship is needed, by “clear and convincing” evidence.
As an attorney who as represented clients seeking to obtain guardianship for a child as well as parents trying to prevent or dissolve a guardianship, my advice to everyone involved in a guardianship situation is to promptly seek an attorney and work with that attorney from the beginning. Cases where guardianships are not properly handled can be unpleasant for everyone.