How can a grandparent or aunt gain guardianship over child?
Full Question:
Answer:
A guardianship is a legal relationship that can be created when a person is assigned by the court to take care of and make personal decisions for another (ward). Guardianship of a minor can be over the actual minor, the property of the minor, or both. Guardianships of minors are often established when neither parent is able to provide a safe, secure home for the child because of drug abuse, alcoholism, and other serious personal problems or when a minor child inherits property worth more than a certain amount of money. To become a guardian of a child either the party intending to be the guardian or another family member, a close friend or a local official responsible for a minor's welfare will petition the court to appoint the guardian. The guardianship petition usually names the potential guardian and provides information about the parties' relationship (if any) and any pertinent information about the heirs or estate of the ward, as well as information about the minor's parents and whether and where they are living. Notice of the time and place of the guardianship hearing must be given to the potential ward and other interested parties. The guardianship of a minor remains under court supervision until the child reaches the age of majority. A guardianship of a child takes away the parents' right to make decisions about their child's life. However, it does not permanently terminate parental rights. This means that although the guardian now has custody and is responsible for raising the child, the parents are still the child's legal parents. The court can order a guardian to let the parents visit or contact the child, but the court may also put limits or other conditions on the visitation, such as requiring that any visitation be supervised. The time and frequency of parental visitation is often is up to the guardian (or the court) to decide. Parents may, in some cases, regain custody of their child in the future if the court determines the guardianship is no longer in their child's best interests. The court may terminate a guardianship if a subsequent hearing proves that the need for a guardian no longer exists, or in the case of a minor, when the child reaches the age of majority. Preferred guardians for a minor are parents and then other relatives. However, the primary consideration in selecting a guardian is the best interests of the minor. If the parents are still alive, before a nonparent is chosen as a guardian, the parents must be determined to be unable or unfit to look after the best interests of the minor.
In Massachusetts, the court will choose the guardian for any minor under the age of fourteen. A minor over the age of fourteen may suggest his or her own guardian and the court will try to honor that request. If the court does not find the guardian desired by the minor to be appropriate, then the court will appoint another guardian.
The following are Massachusetts statutes:
G.L.c. 201, § 2. Guardians of minors; appointment.
Section 2. If a minor is under fourteen the probate court
may nominate and appoint his guardian. If a bond is required
for an appointment under the provisions of this section, a
parent of a minor child may file a bond, without sureties,
relative to his appointment as guardian of said child. If he
is above that age he may nominate his own guardian, who, if
approved by the court, shall be appointed accordingly. Such
nomination may be made before a justice of the peace, notary
public or city or town clerk within the commonwealth who
shall certify the fact to the probate court. Upon the filing
of a petition for the appointment of a guardian under this
section, the court shall appoint a time and place for a
hearing, and shall cause not less than seven days' notice
thereof to be given to the mother and father of said minor,
if living, unless they have assented to the filing of said
petition; otherwise notice shall be given to the nearest
relatives of full age, and if there are no known relatives
within the commonwealth notice shall be given by publication
as directed by the court. If the person nominated is not
approved by the court, or if the minor resides out of the
commonwealth, or if the minor after being cited neglects to
nominate a suitable person, the court may nominate and
appoint his guardian in the same manner as if he were under
fourteen. If the minor is a married woman no guardian shall
be appointed without such notice to her husband as the court
may order. In the matter of said appointment and all
subsequent proceedings relating thereto, the United States
veterans' bureau or its successor shall be deemed to be a
party in interest and shall receive such notice as the court
may order, if the ward or proposed ward is entitled to any
benefit, estate or income paid or payable by or through said
bureau or its successor. If the minor is or was a recipient
of any type of public assistance, the court shall notify the
IV-D agency, as set forth in chapter 119A, of all
proceedings relating to the appointment of a guardian for
the minor and the IV-D agency shall be permitted to
intervene in such proceedings on behalf of the department of
transitional assistance, the department of children and
families, the division of medical assistance, or any other
public assistance program of the commonwealth.
G.L.c. 201, § 2B. Designation of standby guardianship proxy or successor
proxy.
Section 2B. A parent or parents may designate, in writing, an adult
person or persons to be appointed as standby guardianship proxy or proxies
hereinafter referred to as proxy of the person or estate, or both, of a
minor, whether or not such minor is born at the time of such
designation.
A person who is not the natural parent of the minor but who has been
awarded custody of said minor by a court of competent jurisdiction may
also designate a standby guardian pursuant to this chapter.
A parent or parents may designate, in writing, an adult person
or persons to be appointed as successor proxy of a minor's person
or estate, or both, whether or not such minor is born at the time
of designation.
The designation of both proxy and successor proxy shall be witnessed by
two or more persons, at least eighteen years of age, neither of whom is
to be designated as the proxy. Said designation may be proved by any
evidence. If a designation is executed and attested in the same manner as
a will, pursuant to section two of chapter one hundred and ninety-two, it
shall be presumed to be valid.
G.L.c. 201, § 2C. Petition; affidavit.
Section 2C. Upon the filing of a petition for the appointment of a
proxy or a successor proxy, the court may appoint the proxy and successor
proxy of the person or estate, or both, of a minor in accordance with the
standards established under this chapter.
The petition may be accompanied by an affidavit, which may include the
facts concerning (a) the consent of the minor's parent or parents to the
appointment of the proxy; (b) the willingness and ability of the minor's
parent or parents, if any, to make and carry out day-to-day child care
decisions concerning the minor; and (c) the parent or parents' wishes
regarding future custodial arrangements and permanency planning for the
minor. In all actions to appoint a proxy the parent's or parents'
affidavits and any other papers, documents or reports filed in connection
therewith shall not be available for inspection, unless a judge of the
court where such orders are kept, for good cause shown, shall otherwise
order. Such affidavits, papers, documents and record books shall be
segregated. The parent or parents, or their attorney, shall have access
to and the right to obtain copies of the affidavits, papers, documents,
record books and judgment in actions pursuant to this chapter. The
petitioner's appearance in court shall not be required, if the petitioner
is medically unable to appear, except upon motion and for good cause
shown.
G.L.c. 201, § 2D. Commencement and duration of proxy's authority.
Section 2D. The proxy's authority to act shall commence upon; (i) the
death of the minor's parent or parents; (ii) the consent of the minor's
parent or parents; or (iii) the incapacity of the minor's parent or
parents to make and carry out day-to-day child care decisions concerning
the minor for whom the proxy has been appointed, as established by the
written certification of a licensed physician.
Immediately upon the death or consent of the minor's parent or
parents, or upon the written certification of incapacity as established by
a licensed physician, the proxy shall assume all duties as proxy of the
minor as previously determined by the order appointing the proxy.
The proxy shall not be valid unless accompanied by the dated consent
form, physician's letter or death certificate. The proxy of the minor
shall have the authority to act as a guardian of the minor without
direction of the court for a period of up to ninety consecutive days,
provided that the authority of the proxy may be limited or terminated by a
court of competent jurisdiction.
Upon the commencement of authority of the proxy, pursuant to the
consent of the minor's parent or parents, such authority shall not,
itself, divest the parent or parents of any parental or guardianship
rights, but shall confer upon the proxy concurrent authority with respect
to the minor. Within ninety consecutive days of the commencement of
authority of the proxy, the proxy shall file or cause to be filed,
pursuant to section two, a petition for the appointment of a guardian of
the person or estate, or both, of the minor.
G.L.c. 201, § 2E. Revocation of proxy.
Section 2E. A petitioner or designee may revoke a designation or a
proxy not yet appointed by the court, by notifying all necessary parties
in writing of the revocation. A petitioner, or the proxy approved by the
court, may vacate the appointment by filing with the court a written
revocation and by promptly notifying all necessary parties of the
revocation.
G.L.c. 201, § 2F. Inactivation of proxy's authority.
Section 2F. If a parent who has consented to the commencement of
authority of the proxy withdraws such consent, the proxy shall again
become inactive and the proxy shall return to having standby authority,
under the same terms and conditions as prior to the commencement of
authority, with respect to the minor.
If a licensed physician determines that the parent or parents have
regained capacity, the authority of the proxy, which commenced pursuant
to a determination of incapacity, shall again become inactive and the
proxy shall return to having standby authority, under the same terms and
conditions as prior to the commencement of authority pursuant to
section two D.
The successor proxy shall assume all duties and responsibilities as
proxy of the minor as previously determined by the order appointing the
successor proxy.
G.L.c. 201, § 2G. Emergency proxy of a minor.
Section 2G. A parent or parents, may appoint, in writing, without court
approval, an adult person or persons to serve as short-term emergency
guardianship proxy or proxies hereinafter referred to as emergency proxy
of a minor, whether or not such minor is born at the time of
appointment. The written instrument appointing the emergency proxy shall
be dated and shall identify the appointing parent or parents, the minor
and the person or persons appointed to be the emergency proxy. The
written instrument shall be signed by, or at the direction of, the
appointing parent or parents, in the presence of at least two witnesses at
least eighteen years of age, neither of whom is the person or persons to
be appointed as the emergency proxy. The emergency proxy shall also sign
the written instrument, but need not sign at the same time as the
appointing parent or parents.
A parent shall not appoint an emergency proxy of a minor, if the minor
has another living parent whose parental rights have not been
terminated, whose whereabouts are known and who is willing and able to
make and carry out day-to-day child care decisions concerning the minor,
unless the nonappointing parent consents to the appointment by signing
the written instrument of appointment. The appointment of the emergency
proxy shall be effective immediately upon the date the written instrument
is executed, unless the written instrument provides for the appointment
to become effective upon a later specified date or event. The emergency
proxy shall have authority to act as guardian of the minor for a period of
sixty days from the date the appointment becomes effective, unless the
written instrument provides for the appointment to terminate upon an
earlier specified date or event. Only one written instrument appointing
an emergency proxy may be in force at any given time.
Every appointment of an emergency proxy may be amended or revoked by
the appointing parent or parents at any time by promptly notifying all
necessary parties of the amendment or revocation. The commencement of an
emergency proxy's authority pursuant to the consent of a parent or
parents shall not itself, divest the parent or parents of any parental or
guardianship rights, but shall confer upon the emergency proxy concurrent
authority with respect to the minor.
G.L.c. 201, § 2H. Authority of emergency proxy.
Section 2H. Immediately upon the effective date of appointment, the
emergency proxy shall assume all duties as guardian of the minor and
shall have authority to act, without direction of the court, for the
duration of the appointment which shall in no case exceed a period of
sixty days. The authority of the emergency proxy may be limited or
terminated by a court of competent jurisdiction.
Unless specifically limited by the instrument appointing the emergency
proxy, said emergency proxy shall have the authority to act as guardian of
the person of a minor, but shall not have any authority to act as
guardian of the estate of the minor, except that an emergency proxy shall
have the authority to apply for and receive on behalf of the minor
benefits to which the minor may be entitled from or under federal, state
or local organizations or programs.
G.L.c. 201, § 3. Testamentary guardian.
Section 3. A father or mother may by will appoint a guardian for a
minor child, whether born at the time of making the will or afterward, to
continue during minority or for a less time, effective when the guardian
accepts appointment by filing his bond in acceptable form, except that if
a guardian has already been appointed, whether testamentary or
otherwise, a later testamentary appointment shall become effective only
when approved by the court. A testamentary guardian appointed by will of
a parent shall have the same powers and perform the same duties relative
to the property of the ward, and, if the other parent is not living,
relative to the person of the ward, as a guardian appointed under section
two. If application is made to the probate court for approval of the
appointment of a testamentary guardian after the appointment of a
guardian, whether testamentary or otherwise, has become effective, notice
of such application shall be given to such previous guardian, and
thereafter the court may remove such previous guardian and approve the
appointment in his place of the person applying for approval of
appointment as testamentary guardian or it may appoint any other suitable
person, or it may approve the appointment of the person making such
application to serve as guardian with the guardian already in office.
G.L.c. 201, § 4. Powers.
Section 4. The guardian of a minor unless sooner discharged according
to law shall continue in office until the minor attains the age of
eighteen years and shall have the care and management of all his estate.
G.L.c. 201, § 5. Minors; custody and education; marriage; effect.
Section 5. The guardian of a minor shall have the custody of his person
and the care of his education, except that the parents of the minor,
jointly, or the surviving parent shall have such custody and said care
unless the court otherwise orders. The probate court may, upon the
written consent of the parents or surviving parent, order that the
guardian shall have such custody; and may so order if, upon a hearing and
after such notice to the parents or surviving parent as it may order, it
finds such parents, jointly, or the surviving parent, unfit to have such
custody; or if it finds one of them unfit therefor and the other files in
court his or her written consent to such order. The marriage of a person
under guardianship as a minor shall deprive his guardian of all right to
the custody and education of such person but not of the care and
possession of such persons property. If a corporation is appointed
guardian of a minor, the court may, subject to the right of his parents,
or of the spouse of a minor, as provided in this section, award the
custody to some suitable person. The court may revoke the appointment of
a guardian if the party petitioning for revocation proves a substantial
and material change of circumstances and if the revocation is in the
child's best interest.
