What Is The Need For Guardianship Or Conservatorship Of A Minor?
Often clients come in when there is a child who is under the age of 18 and both parents are unable to care for the child. If one of the parents, or both of the parents, are in agreement as to who should watch the child when they are unable they can sign temporary guardianship over to whoever they like. There is a specific form we can fill out for them to do that. If the parents are unwilling to do that or if they’ve done it and they want the children back prior to it being in the children’s best interest, then that is why clients come in and usually seek guardianship. Often for minors, they are just seeking guardianship, not conservatorship because children under 18 usually don’t have a lot of assets. If they do have assets, an inheritance, or are getting money, then we can set up a conservatorship for them also. If child protection is involved then we have to work with child protection in dealing with a guardianship.
As far as the process for guardianship, essentially you meet with our office, we collect some information and then draft a petition. Then we usually have you come in and sign the petition. We then file it along with the court information sheet you fill out. If you need emergency orders, we can file for temporary guardianship at the same time we file a petition. We include an affidavit to justify the emergency. We can usually get those granted ex parte meaning we don’t have to have notice to everyone with the hearing. Once you are granted ex parte guardianship, we try and work with the parents to see if they will consent. If they will not consent, then we just go and schedule a hearing for you to become permanent guardian. Usually it is 4 to 6 weeks after we file the petition.
If the age of the child is over 2 or 3 then oftentimes the court will want an attorney appointed for the child. The attorney would meet with you as the guardians as well as with the child and write a report to court as to whether they felt that the guardianship was appropriate or not. At any time, the parents can try to contest it. In order to do this, they either need to 1) come talk to you and everyone needs to be in agreement what should be done for them to have their children returned, or 2) they need to hire their own attorney to oppose it in court, or 3) they need to come to court and represent themselves. Oftentimes when we are dealing with these cases, the parents are just not able to take care of their children. They often express a desire to be a good parent, but are unable to hold a job, unable to stay in the same home, and cannot provide a stable home for the children. As a result, the guardian goes ahead and gets appointed and then takes care of the children until the parents are able to provide a stable home environment.
Once we have the court hearing, if no one is opposing it, it is a very short hearing, after which you are granted orders appointing you as guardian and a conservator, if we’ve included that with regards to finances. After you are appointed as guardian, there is a 30 day initial report that is due to the court which just tells the court where the child has been living and what you intend to do with the child after you’ve been appointed. After this there are annual reports every year. The annual reports to the court let the court know how the child is doing and where the child is living.
As far as who can be appointed as a guardian, essentially it is anyone. Often we see it being grandparents, siblings, or other family members who are appointed guardians. In the state of Idaho there cannot be co-guardians for a minor child. We can only appoint one guardian, but we can have an alternate behind the initial guardian if needed. If you are a grandparent and you have had a child with you for a long time, then there are statutes in which you might be able to come in on the same status as a parent. We call it a de facto guardian. The child has to be in your care for 6 months if the child is under the age of 3 and over a year if they are 3 or older.
Lastly, we always talk with clients about their wills. If you’ve been appointed as a guardian, we would recommend that in your will you set out who you want to take care of the child if you are unable to do so. It is not going to be binding because you are not the parent, but it will at least give some direction to family members as to what direction you feel is best for the children.
If you need guardianship for a minor please give me a call to discuss the options. If we can help you at all, if you have any other questions with regards to how to get guardianship of a minor, please give us a call at (208) 552-1165. Thank you.
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