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Guardianship of a Minor

A court order giving an adult who is not the parent legal authority over a child's care, or over the child's property, without ending the parents' rights - how it differs from custody and adoption, who can be appointed, what the parents keep, and how it ends.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

Guardianship of a minor is a court appointment that gives an adult - typically a grandparent, relative or family friend - the legal authority to make decisions for a child whose parents are unable, unwilling or unavailable to do so. It exists in the probate or family code of every state, and it differs from the two things it is most often confused with. Unlike custody, which allocates parental rights between parents, guardianship places a non-parent in the parental role. Unlike adoption, it does not terminate the parents' rights: the parents remain the child's legal parents, usually keep a right of reasonable contact, remain liable for support, and can ask the court to end the guardianship when they are again able to care for the child.

Most states separate guardianship of the person, which covers where the child lives, school enrolment, medical consent and day-to-day decisions, from guardianship of the estate (sometimes a conservatorship), which manages money or property the child owns - an inheritance, a settlement, life-insurance proceeds - under court supervision with a bond, an inventory and periodic accountings. A parent can nominate a guardian in a will or a written designation, and the court gives that nomination weight, but the appointment is always the court's and is made on the child's best interests. The parents receive notice and may object; where a living parent objects, the petitioner must generally show that placement with the parent would be detrimental to the child or that the parent has abandoned the child, because a fit parent's right to custody has constitutional weight.

Many states also provide lighter tools that avoid a full guardianship: a temporary or emergency guardianship for a fixed period; a standby guardianship that takes effect on a parent's death, incapacity or deportation; and a power of attorney or delegation of parental authority, which lets a parent hand decision-making to a relative for a limited time without any court order and revoke it at will. A guardianship of the person ends automatically when the child reaches majority, and earlier on the child's adoption, marriage or emancipation, on the guardian's resignation or removal, or when the court finds the parents can resume care; the guardian remains answerable to the court for the child's welfare until then and, for an estate, until the final accounting is approved.

Where this comes from

Guardianship of a minor is state statute: the probate or family code of each state, many of which follow the Uniform Probate Code, article V, or the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (2017). The weight given to a fit parent's objection comes from the constitutional parental right recognised in Troxel v. Granville, 530 U.S. 57 (2000), and Stanley v. Illinois, 405 U.S. 645 (1972). Standby guardianship statutes, first enacted for parents with terminal illness, now exist in a majority of states. For a child whose parents have died, the Social Security survivor benefit is paid to a representative payee under 42 U.S.C. § 405(j), which is distinct from a guardianship of the estate. The forms, bond requirements and accounting schedules are each state's own and are not stated here.

When people hire a lawyer for this

A relative caring for a child informally usually discovers the need for a guardianship at the school office or the doctor's surgery, when a signature is refused. A lawyer is worth having when a parent may object, when the child owns or will receive money, when the child receives benefits that require a representative payee, or when immigration status is involved (a guardianship order is one route to the findings a child needs for special immigrant juvenile status). Parents should also think about nominating a guardian in a will, because without one the court chooses among whoever applies.

Find a lawyer for this in your state

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.