Not many people realize the important role guardianship plays in family law. When a family falls apart and places children at risk, guardianship allows the courts to give legal and physical custody of these children to capable guardians, who may be relatives or foster parents.
The process of seeking guardianship is actually very simple. An agency supervising a child at risk or a party wanting to serve as a guardian files a petition for letters of guardianship. The statute allows for guardianship in only certain circumstances, and prefers placing a child with a natural parent. However, if neither natural parent can be found or is fit to parent, the basis for a guardianship is established. Guardianships have no finite timeline and the courts retain jurisdiction over the children, so if circumstances change, a reformed parent could become part of a child’s life or, conversely, the court may find it appropriate to terminate parental rights and allow a guardian to adopt the child.
This week, the Eastern District of the Missouri Court of Appeals decided a guardianship case with a very interesting set of facts that highlight how important the guardianship statutes remain in giving children suitable guardians in times of crisis.
In In the Matter of J.D.D., mother and father had once been married and had a child together. They divorced in 2007, and father received sole custody of the child. Mother had a long history of mental illness and substance abuse. Subsequently, mother became pregnant by another man who chose to have no role in the life of the unborn child. Before the birth of the child, mother approached father and asked him to care for the child as she felt she could not do so. Father agreed, and mother listed father as the father of the child on the child’s birth certificate. Father took the child home after the birth and mother seemingly disappeared. For the next two years – the first two years of the child’s life – mother had no contact with the child and made no financial contribution to the support of the child. When the child was only three months old, it suffered from a condition known as gastroparesis, where the stomach become paralyzed. The child had to be hospitalized for two months and received specialized care. During this time, mother never came to see the child or made other efforts to become involved. Father cared for the child exclusively. Suddenly, on July 1, 2013, mother appeared with the police to take custody of the child from father. Father showed the officers his name on the birth certificate, and they refused to let mother take the child. Father filed his petition for guardianship and mother filed a petition for habeas corpus, alleging father had unlawful custody of the child. The court appointed a guardian ad litem who concluded that mother was unfit to parent due to her mental illness and present physical condition that did not allow her to lift more than twenty pounds, and the child weighed thirty pounds. Despite all the evidence, the trial court denied the guardianship and gave mother custody of the child. The Eastern District reversed, finding that mother abandoning the child for nearly two years and providing no financial support constituted parental unfitness when coupled with her history of mental and physical problems. Further, the fact that she had the wherewithal to place the child temporarily with father did not make her a fit parent. Father became the legal guardian of the minor child.
While the father in this case probably thought the birth certificate gave him legal rights, he was technically mistaken as the child was born out of wedlock. Father should have sought guardianship much earlier, and it seems surprising that he did not encounter more problems before mother arrived out of the blue.
The lesson in this case should be that any person who agrees to serve as a guardian should secure letters of guardianship at the outset. When the matter is not contested – the parent is voluntarily giving up legal rights for an indefinite but temporary period of time – it really involves nothing more than signing some papers. Without clear legal status, the guardian will be in legal limbo and perhaps unable to provide care, even resulting in the State taking custody of the child.
Guardianship is a complicated area of the law, and one who is considering becoming a guardian should seek legal advice in advance.
If you have questions about guardianship, contact us – we can help.