Sometimes neither parent can take care of a child. This could be due to death, disability, or some other reason. When this happens, another person, often a family member or friend, can ask the court for legal authority to care for the child. This person is called a guardian.
When can a guardianship be set up?
There are three different standards for a minor guardianship: (1) when both parents have died, (2) when the parents consent, (3) and when parents don’t consent.
- Parents have died: The court will give preference to a person named in a parent’s will. But only if the person is qualified and suitable.
- Parents consent:
- Parents knowingly and voluntarily consent to the guardianship.
- There is a need for the guardianship because the parent has an illness that prevents the parent from providing care, the parents are incarcerated, on active military duty, or some other good cause.
- It is in the best interests of the child.
- Parents don’t consent:
- A person is acting as the child’s caretaker.
- The parents have not consistently participated in the life of the child. The court will consider: the intent of the parent in placing the child with the caretaker; the amount of communication and visitation with the minor; and, the parent’s refusal to comply with conditions for retaining custody from any previous court orders. OR
- No parent is willing or able to parent the child and appointment is in the best interest of the child.
If the parents do not consent, then the proposed guardian must show by clear and convincing evidence that a guardianship is needed. The Iowa Supreme Court has confirmed a parent’s fundamental right to the care, custody and control of their children. A fit parent is the preferred decision maker for their children.
Where do you file for a minor guardianship?
Minor guardianship cases are filed in juvenile court.
Who is qualified to be a guardian?
All proposed guardians have to submit to a background check. This includes a criminal records check, a child abuse registry check, a dependent adult abuse registry check, and a sex offender registry check. The person filing for guardianship is responsible for the costs of the background check. However, the court may waive the fees for good cause. The judge will consider the results of the background check in deciding whether someone is a suitable guardian.
I am a parent and can’t afford an attorney, but want to fight the guardianship. What can I do?
A parent who does not agree to the guardianship and cannot afford an attorney, can ask for an attorney. The court will appoint an attorney to represent a parent.
The court may also appoint an attorney to represent the child. The attorney will advocate for the child’s wishes. If the child is too young to state their wishes, the attorney will advocate for the child’s best interest.
The court may also appoint a court visitor for the child. The court visitor cannot be the same person as the child’s attorney. The court visitor will meet with the child. The visitor will explain guardianship and determine what the child wants. The court visitor will talk with the parents and the proposed guardian. The court visitor will visit the child’s home. The visitor may review medical, educational and social service reports. The visitor may speak with the child’s teachers, doctor or service providers. The court visitor will provide the judge with a written recommendation about the guardianship.
What if I want to agree to the guardianship? What happens?
If a biological parent agrees to the guardianship, they will sign a consent form. The parent and the guardian must submit an agreement about the responsibilities of the guardian and the responsibilities of the parent or parents. The agreement must state how long the parent and guardian think the guardianship will last. The court reviews the agreement. The court has to approve it. The agreement must be knowing and voluntary and must be in the best interest of the child.
What if I don’t agree to the guardianship?
The court will set a date for a hearing. The hearing must be at least 20 days after service of the notice of the hearing. At the hearing, the parties present evidence about why the guardianship should or should not be granted. If the court decides a guardianship is needed, it will set out the powers of the guardian.
A guardian must get court approval before denying the parents all visitation, communication or interaction with the minor. A guardian can place reasonable restrictions on the time, place and manner of visitation without court approval.
What happens after a guardianship is established?
A guardian will have to file an initial care plan within 60 days of being appointed. The initial care plan must include information on many different things. It must include the child’s health, education, activities, and plan for payment of the child’s expenses. It must also include the guardian’s plan for helping the child stay in contact with the parents.