Legal Guardianship
and Other Forms of Child Custody

Legal Guardianship of a child will see the guardian having legal and physical custody of the child i.e. the child lives with the guardian and the guardian has control over the child.

However, the parent maintains her parental rights - although these rights may be conferred whilst the child lives with a guardian and the guardian thus acts in loco parentis (literally meaning "in the place of the parent") for the child.

In this context the parent(s) are still alive and not as we discuss elsewhere when guardianship is assigned in a will after the parent(s) pass away.

Legal Options when Caring for Minors

There are a number of legal options to consider when it comes to the caring of children.

Take a look at our infographic which gives an overview and also shows:

• The informal routes parents can go that need not involve consulting with an attorney and for which we supply free legal forms to use as templates; and


• Which options may need intervention by a court and also continued court supervision after a court order.

Our article on this page then goes into more detail for each circumstance.

• Permanent Guardianship
• Duration and Termination of Guardianship
• Emancipation of Minors
• Adoption vs Legal Guardianship
• Custody vs Guardianship and Grandparents' Rights
• Foster Care vs Temporary Guardianship

Our Free Legal Guardianship Forms

• A parent may voluntarily award guardianship to another person on a temporary basis.
  
  Take a look at our Temporary Guardianship form that caters for this requirement and our legal guidelines for its use.
• An Affidavit of Guardianship, as discussed further down on this page, is a form attesting to the authority of a guardian to perform certain actions e.g. apply for enrollment at a school or apply for a study loan etc.
• Power of Attorney for a Child caters for instances where institutions need to rely on the document in order to release school records, or a medical facility needs to perform treatment.
• A legally appointed guardian may have need for a Marriage License Consent Form.

The Definition of a Guardian and the Meaning of a Guardian in a Legal Context

It denotes someone who is legally authorized to care for the person and/property property of another person, called the ward.

A ward may also be a minor child whose parents have died and he is not capable of looking after himself and his interests, or it may be an elderly person who is declared legally incapable of looking after his affairs.

Sidebar: Our page on adult guardianship also explains the differences between a guardian, conservator and curator and the legal avenues that can be pursued to take care of an elderly parent, for example.

Permanent Guardianship of a Child

You must consult with a guardianship attorney if you consider granting permanent guardianship of your child to another person:

• to ensure you understand the legal arrangement and possible consequences; and
• to ensure the process goes through the correct legal channels.

Apart from the legal requirements for a guardian, as a parent you should also consider the following when deciding to voluntarily award legal guardianship to another person:

• Will your child fit in with the other person's family?
• Does the guardian have the financial means to raise the child, should the state child support be inadequate( or paid late from time to time)?
• Will the Guardian allow you regular visitation?

In short, will the guardian take care of the child as his own - or as you would if you could?

The Legal Requirements for a Guardian

A person or persons who are appointed as guardians are obligated to responsibly take care of a child's personal and property interests and to aid or represent the child in legal matters.

To qualify as a guardian a person must:

• Be of legal age i.e. an adult over the age of 18;
• Not have a criminal record reflecting dishonesty such as forgery (falsifying records) or bribery (both giving and receiving bribes); and
• Not be incapacitated.

The duties and responsibilities of a guardian:

• Submit written status reports to the court as and when required. This will include making a detailed inventory of the child's assets within the prescribed period of being appointed as guardian.
  
  Thereafter submit annual accounting reports detailing income and expenses;
• The guardian has a fiduciary duty to his ward. This means that the guardian shall always act with the utmost degree of honesty in the best interests of his ward, and never to his own benefit;
• Apart from providing proper daily care, the guardian must also oversee education enabling the ward to qualify in a trade, profession or training for employment;
• Authorize professional care for the well-being of the ward be it medical, dental, psychological or occupational; and
• Make decisions on whether the child may enlist or get married and where the child will live.
  
  NOTE: A guardian may marry his ward provided he has obtained permission from the court. He cannot himself grant permission or consent to the marriage.

A guardian may need financial assistance from the parents to take care of the child. If the parents do not contribute willingly, then the guardian can petition the court for child support.

Duration of Legal Guardianship

Generally speaking permanent guardianship cannot be terminated once it has been granted by the court and will last until the child reaches the age of majority, which is 18 years in most jurisdictions.

Having said that, it is not impossible to terminate guardianship, but that can only be done through a court order.

The assistance of a guardianship lawyer will be of immense help to you to complete the required forms and provide the legal reasoning and proof that such a termination will be in the best interest of the child!

Terminating a Legal Guardianship Order

If, as a parent, you want to petition to the court to end a guardianship order, your application will be strengthened if you can furnish the court with the following evidence:

• Your personal emotional and physical situations have changed and are now conducive to providing for the child's bests interests. Furthermore, you may have reconciled with your spouse or are in a stable relationship with another person;
• You have kept in regular contact with your child and voluntarily supported the child financially whilst under the guardianship of another;
• You have good relationships with the immediate and extended family of the child;
• Your employment situation is stable and you can support your child financially; and
• Your recent credit history is in good standing and you do not have judgements for bad debt against you.

Incidentally there are other instances when a guardianship will end:

• A child joins the armed forces (with parental consent);
• A minor child gets married (with parental and Court consent where applicable);
• A child may wish to end a guardianship and become emancipated or reaches the age of majority or a child passes away; or
• The child needed guardianship to assist with the child's finances but the funds are depleted and there is no longer need for guardianship. Or a judge may determine the guardianship is not beneficial to the child anymore.

Emancipation of Minors

In the examples given above it would mean a minor child is emancipated i.e. becomes an adult before the age of maturity (normally 18 years of age). Thereafter the Guardians (applicable to parents too) will not have custody of the child anymore and equally have no control over the child.

The child must file a petition for emancipation in the court which is applicable to his/her circumstances. It is important to note that this step is not to be taken lightly and may not even be an option in the state/province/country where the child lives.

If the petition is successful (the child meets and maintains a number of legal requirements), the child will get a declaration of independence from a judge.

One of the requirements would be that the teenager can support himself financially. When that is no longer the case then the court can cancel the emancipation.

Adoption vs Guardianship

A court may order the removal of a child from his parent(s) if it's in the child's best interest to do so. This will typically happen if an interested party (e.g. a child protection agency) submits an application to the court for such an order, along with evidence showing that the child's best interests are continually not being met.

This is the important bit: In this instance the parents retain legal guardianship and their rights and responsibilities are not automatically terminated.

Adoption of a Child

• The parent may willingly consent to the child being made available for adoption and thereby surrender her parental rights and responsibilities.


• If the parents are unwilling, then the court has the power to terminate the rights and responsibilities even if the parent does not want to make the child available for adoption.
  
  This may happen when the parent is unable to provide for the best interests of the child, which may result in the child being in alternative care indefinitely. This is obviously not an ideal solution for a child!

The court recognises the needs of the child to be permanently settled and hence may intervene if parties bring application to the court to terminate the rights and responsibilities of the parent(s) and adopt the child.

Custody vs Legal Guardianship

Custody of a child is typically determined in a divorce situation. The child will live with one parent who will have the right to make important decisions on the child's behalf.

Sidebar: It is unfortunately true that there has been an increase in parental child abduction or even abduction by other family members. There is legal recourse and assistance available, for a parent whose child has been abducted across international borders.

It is important to know: A parent cannot give legal custody of a child to another person. Only the courts can do that.

Grandparents with a Child Custody Agreement

There are two distinct circumstances when it will be relatively easy for grandparents to get custody of a grandchild:

1. Both parents consent to the grandparents having custody; or


2. A parent who has custody dies and names the grandparents as guardians in a last will and testament.

However there may be circumstances where the grandparents seek court intervention in order to get custody of grandchildren. For example:

• There is proof of abuse or neglect of the child in the parents' home.
• The parents are deemed unfit because they do not provide proper care and support for a child. Furthermore, there may be mental illness, alcohol or substance abuse, domestic violence etc.; or
• The child is already living with the grandparents or expresses a wish to continue to do so.

Even in view of all the above, the court may still not necessarily award custody to the Grandparents. Other close family members may also petition for custody.

Furthermore, the Grandparents may be frail and elderly or may not have financial means to provide proper care for the child.

It would count greatly in favor of grandparents seeking custody if the child has already been living with them for some time and wishes to stay there. The court would consider such stability and bond with the grandparents as being in the best interests of the child.

The refrain "best interests of the child" runs through all matters affecting the care of children, whether it is in guardianship, foster care or custody.

There is as always huge variance in laws governing custody of children. Grandparents must consult with a child custody attorney in their specific area to assist them in this process.

Grandparents Right to Legal Guardianship

If the biological mother is not of legal age and unmarried, then her parents (or legal guardians) are also the guardian of her child i.e. the grandchild.

The exception to this rule would be if the biological father of the child is of legal age, in which case he may automatically have guardianship, or acquires guardianship through a court order.

If parents cannot take care of children on a full-time basis, they can enter into an agreement to give rights and responsibilities to another adult (e.g. grandparents) with whom the child will live. This adult (grandparent) will make day-to-day decisions regarding the care of the child.

However! The mother and father do not relinquish any of their rights and responsibilities.

The rights of a parent include the right to keep contact with, and act as guardian for a child.

The responsibilities of a parent include caring for and contributing towards the maintenance of a child.

And grandparents do not have these rights whilst the children are living with their parents.

Take a look at the following examples:

• A child is in the care of the grandparent during the week but weekends lives with the mother and/or father.


• The mother of a child passes away and the father remarries a woman whom the child considers a parent.
  
  The maternal grandmother then petitions the court to grant her access to the child. The court will need a compelling reason to interfere with the rights and authority of the parent and will decline access by the grandmother if it is not in the best interests of the child.

Therefore, grandparents need to understand that they do not have inherent or automatic right of contact or access to grandchildren, nor do they automatically have responsibilities for a grandchild.

Having said all that, the court may interfere if the grandparent(s) can show the court that refusal to access was not in the best interests of the child. Thereafter, should they have a visitation order and are denied access to the child, they do have the right to have the order enforced.

Power of Attorney for a Child

Giving grandparents Power of Attorney for a Child may be a better solution for some families!

The parent can make the authority as broad or as limited as he/she wishes (i.e. general or specific powers of attorney) and can revoke it at any time. Take a look at our guidelines and the applicable legal documents to see if it can work for you.

Foster Care vs Temporary Guardianship

What is Foster Care?

• In foster care the State stands in loco parentis (in the place of the parent) to the minor and makes all legal decisions on behalf of the child.; and
• The foster parent is responsible for the day-to-day decisions and care of the child.

It may be called boarding-out in some countries, notably the United Kingdom and Australia. In Canada the terminology is being a ward of the State.

Family-based foster care is a short-term arrangement until permanent placement can be made. In this context "family-based" is used in the broader sense of the word and does not necessarily mean being related to the child.

Different Types of Foster Care

• Foster care may be voluntary where a parent or guardian is unable to care for a child.


• Involuntary placement occurs when a child is at risk of, or actually comes to physical or psychological harm and is removed from the parent or guardian.
  
  In this instance the social services will have temporary custody of the child until the home situation is remedied, failing which the state may terminate the parent's rights and approve legal guardianship or adoption.

In foster care the responsibilities and rights of biological parents are not completely terminated. Moreover, the foster parent does not automatically become a legal guardian.

The ideal situation, most often, is for children to be fostered within their own or extended families with whom they have a kinship.

Formal Foster Care

In formal foster care placements, financial assistance is provided by the State in the form of social grants.

However, if a child has an income e.g. testamentary trust fund or an insurance policy that paid out on the death of the parents, then it is unlikely that a state foster care grant will be paid.

In a formal foster care placement, the foster parents are eligible, and may be given a preferential option, to adopt a child when adoption becomes available. The courts must consider the application in recognition of the bond that may exist with the child and the care the foster parents have bestowed on the child.

Informal Foster Care

In an informal foster care or temporary guardianship situation, there will not be any foster care grants from the State.

What is the Definition of Curator and What Role Does He Play?

A curator is a person who is legally appointed to take care of the interests of an underaged or mentally incapable person who is unable to do so himself.

Note the proviso: A person may have an appointed curator because he is not capable of managing his affairs. However, this does not necessarily mean that he is mentally incapable of, (for example) entering into a marriage contract.

Guardianship Attorney

It is very important to consult with a guardianship attorney in order to obtain legal advice on whether this agreement should be registered with, or made an order of, the applicable court.

There are a number of courts where a party can bring application e.g. children's court, divorce court etc. and the guidance of a guardianship lawyer is crucial.

NOTE:

Do not sign the affidavit beforehand. You will do so in the presence of a Notary Public or Commissioner of Oaths, whichever the case may be in your jurisdiction.

Alternative wording for the following numbered paragraphs in your Affidavit of Legal Guardianship:

You may be otherwise related to the child. Or you may be a friend or professional acquaintance of the parents. Then identify yourself as such: e.g.
"I am the sister of", or
"I am the legal guardian of".

4. We used a Power of Attorney as verification but you may attach any document that authorizes you to act on behalf of a child e.g. court order granting you custody.

5. Simply state the reason for your having to submit an affidavit of guardianship, for example:
* Application for enrollment at a school or other institution
* Application for a study loan / relief / bursary

There are a number of factors to consider regarding the legal guardianship of a child and which option would be best for all interested parties, but most of all, which option would be best for the child.

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