Guardianship is different from adoption. A legal guardian has the legal rights and responsibilities of a parent, but is not legally the parent of the child. An example might be a case in which a grandparent needs to take on full responsibility for a child while the parent is in jail or in rehab. The guardian can make decisions about school and medical care, but the parents do not lose their parental rights. That doesn’t mean the granddad can just pass the child over to the mom. Ending a guardianship is a legal process and you should have a qualified lawyer to assist you.
If the guardian agrees
In our hypothetical example, we’re imagining a case in which a mother is imprisoned for several years. By arranging for her father to be the child’s guardian, she is making sure that her child is cared for while she is unable to provide a home for him. The plan, in our example, was for the mom to take back full custody of the child once she was released.
You might think that Grandad can just take the little boy to his mom’s new home and drop him off, figuring his guardianship has ended.
It doesn’t work that way. Mom must petition to terminate the guardianship. Arkansas law recognizes several reasons for ending a guardianship, but the one that applies here is this one:
- If, for any other reason, the guardianship is:
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- (A) No longer necessary; and
- (B) No longer in the best interest of the ward.
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This means that the court must make sure that the guardianship is no longer needed and no longer in the child’s best interests. The parent needs to show the court that she is now able to provide a safe and stable home for the child.
Only after she has a court order agreeing to this can the child move back in with mom. The guardianship continues until this process is complete.
If the guardian contests
Let’s take our hypothetical example in a different direction. Let’s say that mom has been released but is still on probation and Grandad is not sure that she’s actually ready to take responsibility for her child. Maybe the child doesn’t want to leave Grandad’s home or doesn’t even really remember his mom. Maybe mom had been drinking when she showed up at Grandad’s home. It’s just a story, so you can add any details you want, but let’s say that Grandad doesn’t agree to give up the guardianship.
In that case, Mom and Grandad have to go to court as in a contested adoption. Each must try to prove that they will be the best adult to care for the child. Grandad has to prove that Mom is not yet able to be a fit mother. Mom has to prove that she is a fit mother. The child may have input and may be represented in court.
The judges decision stands. If the child is sent home with Grandad, Mom can work on becoming better able to care for the child and try again. With any luck, Grandad will help her, and be ready to agree when they go to court again.
Does the parent need to adopt the child?
When a child has a guardian and also a living parent who has not lost parental rights, adoption is not necessary. Once the judge agrees to terminate the guardianship, the parent can have custody of the child again. Ending the guardianship is not about parental rights, but about custody.
This is why a guardianship is good choice for a situation like our example. If Mom had lost her parental rights and Grandad had adopted the child, then Mom would have to adopt the child again and Grandad would have to agree. With guardianship, the situation is simpler.
However, it is still a legal process and you should have a lawyer if you find yourself needing to end a guardianship. Heimer Law can help. Click the button below to go to our simple inquiry form.
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