What is needed for my son to give me guardianship of my grandchildren?
02/08/2007 - Guardianship - State: IN #582
My son and his ex-girlfriend had been together for 16 years. They have three kids together. She walked out. She was using drugs and still is. She left behind, at the time, a 5 year old, 9 year old, and a year old baby. She has seen the kids maybe a total of 5 times. She is not allowed to take them, because of the life she is living. The boys don't want to see her. The baby which is going to be three in March doesn't know her. I am the grandmother of the kids, and I am raising them, and I have them in school. My son works nights, and I need to get guardianship of the kids to keep them in school here in the county where I live. He lives in Marion county, and I am in Hancock county. The kids go home on Friday night and stay until Sunday night, so they can have time with their dad. I need to know how to get guardianship. My son doesn't have a lot of money for a lawyer, but I can try and help.
Establishing a Guardianship
There is a specific procedure to follow in establishing a guardianship for a minor:
Location. All counties in Indiana have a court which has jurisdiction over probate matters. Any action to establish a guardianship must be filed in that court. For a minor who is a resident of Indiana, the proper county for filing the petition is the county where the minor lives.
Petition. Any interested person may file a written petition to the court asking that a guardian be appointed for the minor. The petition must provide the court with information about the minor, including address, next of kin, value of assets, and name and address of institution or persons with custody of; the minor protected person. Information must also be given about the proposed guardian, including name, address, lawyer's name and address, whether the proposed guardian serves as a guardian for anyone else and whether the proposed guardian is guardian for the minor in any other state.
Notice. When a petition is filed, the court will set a date for a hearing to receive evidence. A copy of the petition for the appointment of a guardian for the minor and notice in the form provided in the statute must be given to:
a); the minor if at least 14 years of age unless the minor signed the petition;
b) any living parent of the minor unless parental rights have been terminated by court order;
c) a person alleged to have had the principal care and custody of the minor during the 60 days preceding the filing of the petition; and
d) any other person that a court directs.
Upon the filing of a petition for the appointment of a guardian for the minor, notice in the form provided in the statute along with a copy of the petition must be served on:
a) the minor's parents.
b) any person that is serving as guardian for or has the care and custody of the minor.
c) at least one person most closely related by blood or marriage to the minor if notice cannot be given above;
d) any other person that the court directs.
Hearing. The minor is required to be present in court unless the court finds:
a) it is impossible or impractical for the minor to be present due to the disappearance, absence from the state or similar circumstances; or
b) it is not in the minor's best interest to be present because of a threat to the health or safety of the minor.
Prior to the hearing, the court may appoint an attorney for the alleged protected person and shall appoint a guardian ad litem. The attorney and guardian ad litem shall be paid from the estate if a guardian is appointed.
At the hearing, the court will hear evidence regarding the minor. Once the court determines that a guardian is necessary, the court must determine whether the proposed guardian in the petition is qualified. The court will also consider certain preferences in selecting a guardian.
Guardian qualifications. Any guardian must be at least 18 years of age, of sound mind, not a convicted felon and a person whom the court finds suitable. A corporation may be guardian if authorized to act as a fiduciary in Indiana. The guardian must accept the appointment and file a bond in an amount equal to the value of the personal property plus one year's income from all property. Individual surety on the bond is acceptable under certain guidelines. The court may reduce the bond if limitations are placed on the guardian's use of the property.
Guardian preferences. In selecting a guardian, the court is required to give preference as follows:
a) a parent of the minor; and
b) any person related to the minor by blood or marriage with whom the minor has resided for more than six months before the filing of the petition.
Types of Guardianships
There are different types of guardianships:
Regular. The guardian is required to care for and maintain the ward. A person under age 19 does not need a guardian if a parent of the person is properly performing parental duties. The guardian is to see that the minor is properly trained and educated and has the opportunity to learn a trade, occupation or profession. The guardian is required to report the condition of the minor to the court at regular intervals. The guardian is charged with protecting, preserving, investing, and accounting for the minor's estate. If the assets of the minor are extensive, a separate guardian for estate management may be desirable. The guardian must file an accounting every two years and seek approval from the court for extraordinary expenditures or transfers. The guardian also files income tax returns and pays taxes for the ward.
Temporary. In emergency situations, the court can, without hearing, appoint a temporary guardian for a specified period not to exceed 60 days if the court finds that the welfare of the minor requires the immediate appointment of a guardian. This is an extraordinary procedure and is limited to emergency situations.
Liability of Guardian:
Generally, a guardian is not legally responsible for the actions of the minor. This applies to legal liability as well as financial liability. If, for example, a minor runs away, steals a car and wrecks it, the guardian cannot be charged with the crime of theft nor will the guardian be required to use his personal funds to pay for the damages. If the guardian acts in good faith in carrying out his duties to protect the wards interest and in faithfully reporting to the court, the guardian will not be held liable for his actions. The guardian will be liable for any breaches of the duties which he owes to the minor.
Removal as Guardian:
If the guardian is not doing the job properly, the guardian may be removed by the court. When this happens, a successor guardian will be appointed. A successor guardian may also be appointed if the first guardian resigns or dies.
Several conditions terminate the guardianship:
a) if the guardianship was established solely because the protected person was under 18 years of age, it may be terminated when the protected person becomes 18 years of age or, in the court's discretion, if the protected person is married before age 18;
b) if the minor dies;
c) at the court's discretion if the minor's residence is changed to another state and a guardian has been appointed for the minor in that state; or
d) if the court determines that the guardianship is no longer necessary for any other reason.
On termination, the guardian is required to file with the court an account and report of all activities. If the court accepts the report, the guardian will be discharged from all obligations after final distribution is made.
Please see the information at the following links: Please see the forms at the following links:
02/08/2007 - Category: Guardianship - State: IN #582
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