Minor Guardianship – Options for Non-Parental Caregivers (Formerly Known as Nonparental Custody)
Do I Need Regular Minor Guardianship or Emergency Minor Guardianship?
An emergency minor guardianship is temporary, and it lasts up to 60 days. In some cases, it can be extended but emergency minor guardianships are typically easier to get and are most often used when a child is in immediate danger.
A regular minor guardianship lasts until the child is 18 and can take up to a year to obtain.
What is Minor Guardianship and When it is Appropriate?
Prior to January 2021, RCW 26.10 governed non-parental actions for child custody.
Today, we use the Uniform Guardianship Act, which is found under RCW 11.130.
A person, typically a family member, close friend or even the child themselves, will petition the court to appoint someone to take care of the needs of the minor child and make decisions on behalf of the minor child.
The court may appoint a guardian for a minor if the court thinks it is in the child’s best interest, and one of the following is true:
(a) each parent of the minor consents,
(b) all parental rights have been terminated; or
(c) there is clear and convincing evidence that no parent is willing or able to properly parent the child
When determining if a parent is willing or able to properly parent the child, the court is looking at six (6) specific factors. Those factors are known as “parenting functions.”
Parenting functions include:
(a) maintaining a loving, stable, consistent, and nurturing relationship with the child;
(b) attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, and day care, and engaging in other activities which are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family;
(c) attending to adequate education for the child, including remedial or other education essential to the best interests of the child;
(d) assisting the child in developing and maintaining appropriate interpersonal relationships;
(e) exercising appropriate judgment regarding the child’s welfare, consistent with the child’s developmental level and the family’s social and economic circumstances; and
(f) providing for the financial support of the child.
What are the Qualities a Court Will Look for in a Guardian?
- Be at least 21 years old (unless the guardian is a parent)
- Not have criminal convictions involving dishonesty, neglect, or use of physical force or other crimes related to a guardian’s responsibilities*
*A court might consider a relative qualified to be the guardian even if they have a conviction. It will depend on the facts of the situation and the type of conviction.
I am Already Taking Care of the Kids…why Would I Need a Lawyer to get a Minor Guardianship?
A minor guardianship can give you authority to make decisions for the children without consulting their birth parents. It will specify your responsibilities for the child, it could help you enroll the children in school, and obtain medical treatment for the children.
Can Children Participate in Minor Guardianship Cases?
If the child is 12 or older, they have the right to be notified about the case and the court must appoint a court visitor. The court visitor meets with the child to explain the child’s rights and to find out the child’s views about the guardianship. The court may, but is not required to, appoint a free lawyer for a child 12 or older who requests one. Children also have the right to attend and participate in minor guardianship hearings. The court can exclude children from the hearing if the minor lacks the maturity to participate or attendance would be harmful to the child.
Why Would I Choose Adoption Versus Minor Guardianship?
Minor guardianship does not terminate the birth parents’ rights.
Birth parents could potentially come back to court and ask for the guardianship to be terminated. The court will terminate the guardianship if the original reasons for the minor guardianship no longer exist, unless it finds that:
1. Termination of the guardianship would be harmful to the child, and
2. The child’s interest in continuing the guardianship outweighs the parent’s interest in ending it.
If you are seeking permanent parental rights, that the birth parents cannot change later, adoption or de facto parentage would be better options.
What Happens After the Petition is Filed?
The birth parents can choose to fight the petition and there will be a trial. If you are the one seeking guardianship, you will have to prove that the guardianship is in the best interest of the child and there is “clear and convincing evidence” (very strong evidence) that the child’s parents are unwilling or unable to care for the child. It is not enough for the caregiver to show that they are better at parenting or that they can provide a better home environment.
The birth parents can agree to the petition. If the parents agree and the proposed guardian does not have a criminal history, the court will likely grant the minor guardianship.
If either birth parent fails to respond, then the court would likely enter a default judgment for the person seeking the guardianship.
To learn more about Minor Guardianship – Options for Non-Parental Caregivers, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.