What is Legal Guardianship?
Legal guardianship of a minor is the full care, control and custody over a minor that has been given to someone by a court of law. It is a procedure that requires the filing of a petition and an investigation by the Orphans Court, followed by a hearing. The court must approve the appointment of the proposed legal guardian after the hearing, after determining that such appointment is in the best interests of the minor child, and after making various findings of fact specified in the statutes pertaining to legal guardianship.
Sometimes the decision may be made not by Orphans Court, but by the Family Court. Actions to modify or terminate a legal guardianship, or to have the appointment of a new guardian made permanent, lie within the jurisdiction of Orphans Court. Generally speaking, an order appointing a legal guardian terminates the appointing parent’s active care, control and custody over the child, and gives it to the legal guardian.
Legal guardianship of a minor may also be achieved through adoption, although adoption has a somewhat different meaning in Pennsylvania than it does in many other states. In Pennsylvania, the term "adoption" does not mean legal guardianship, as explained below. Adoption is the procedure whereby a child becomes the legal child of some person other than the biological parent(s), without severing the legal ties between them and their biological parent(s). Generally speaking, legal guardianship of a minor under the statute means active care, custody and control by a person who is not the biological parent(s), with provision for care and control of the child to be temporary in nature. Adoption of a minor means that the adoptive parent or parents become the legal parent or parents of the child, with the child’s adoptive parents having the same obligations to the child as biological parents have, and the same rights as well (absent some limitation or qualification under the order of adoption). Legal guardianship is a more permanent where the child’s adoptive parents have plus or minus some limits and/or qualifications to parents’ rights, duties and obligations to the child.
The law provides that legal guardians may be appointed on a temporary or a permanent basis. If temporary , legal guardians are required to appear before the Orphans Court at least once a year to establish that the needs of the minor are being met and may be removed by the court upon request, with notice to the parties and after a hearing, if appropriate. If permanent, legal guardians do not have to re-appear before the court every year. Legal guardianship does not affect decisions pertaining to education, medical treatment or general health care of the minor, unless the court order appointing the legal guardian specifically states otherwise.
The term for legal guardianship of a minor is specifically provided by statute, and no guardian may be appointed for a minor longer than the longest of the following 10 periods: 1) until the minor reaches the age of 18 years; 2) until the date that would constitute the expiration of 180 days following the date of the appointment of the guardian; 3) for such shorter period as the minor may be legally prior to that date; 4) for such lesser time as the Orphans Court, after a hearing, deems appropriate under the circumstances or in the best interests of the minor child; 5) for such period as the court may determine in the case of a temporary guardian; 6) 30 days beyond the death of the parent who was appointed guardian, where the guardian was the natural parent; 7) until a decree of adoption occurs of the minor, 8) for such lesser time as the court may determine, upon a showing of good cause, in the case of a guardian appointed at the time of a minor’s trial for emancipation; 9) until the date that would constitute the expiration of 270 days following the date that the Order appointing the guardian was executed, in the case of the death of the parent to whom physical legal custody of the minor has been granted, provided that the minor was removed from his home for a period not exceeding 30 days during the 90 days immediately preceding the date that the Order appointing the guardian was executed, and successful conclusion of the parental rights termination petition is not likely, or 10) until the date that upholds the initial appointment and would constitute the expiration of 90 days following the entry of a final decree terminating parental rights, where the surviving parent is appointed as the legal guardian.
Who Can Be a Guardian in Pennsylvania?
In the Commonwealth of Pennsylvania, there are specific eligibility requirements that must be met in order for an individual to be legally appointed to become a legal guardian for a minor child. Under certain circumstances, a guardian can be temporary or permanent. However, all guardians must first undergo a legal, evaluative process before being considered for appointment or approval by the court. In Pennsylvania, and more particularly in Lancaster County PFA cases, judges review all eligible individuals who will potentially care for the minor children, and take into careful consideration the appointing of temporary or permanent guardianship.
A person seeking to become a legal guardian must be of legal age (18 or older), have the intention of providing proper care and maintenance of the minor child, must have the capacity to care for and manage property on behalf of the minor, must not have been adjudged incompetent (a determination of mental incompetence) by a probate court, and such other requirements as may be ordered by the court. A guardian of a minor shall, if the minor is age 14 or older, be a parent or a person nominated by the minor’s parent, or the nominated guardian of the minor’s person.
Upon the death of the appointed guardian, the responsibilities, in the interim and until a successor guardian is appointed, rest with his or her spouse, unless otherwise provided by the will or other requirements of the court. In the event a guardian incapacitates himself or herself, becomes removed or resigns, the court will appoint a successor guardian.
How to Obtain Legal Guardianship
To obtain legal guardianship of a minor a petition can be filed in the family court division of the local Court of Common Pleas. As noted above, often the parties agree to this arrangement. The pleadings are docketed with the Court and hearing date assigned. The Petition must be served on the parent(s). Not every jurisdiction requires service on both parents, but this is a regular practice. Service must be completed at least 10 days prior to the hearing date. Some jurisdictions require filing of proof of service, some do not.
Obtaining consent of the minor is ideal. If consent is available, the minor completes and ratifies a consent statement which has been provided which states that he/she consents to the appointment of the individual nominated as Guardian of the minor.
On hearing day, the case will be called. The Court will ask the parties to state their name, address and relationship to the minor child. The Court then will ask the parent or persons who has factual custody of the minor whether they have any objection to the appointment of the named party as guardian. If not, the Court will take testimony from the party seeking to be appointed guardian, and also of the minor, if age 14 or older. The Court will state on the record the age, grade and placement of the child in school. The Court may request that a report be completed by probation department. Sometimes the Court continues the matter for a home study. If all parties are in agreement, the Court may immediately enter the Order for appointment of guardian. There is no waiting time frame – it is very quick.
Legal Rights and Duties of a Guardian
The rights and responsibilities of the guardian are spelled out within the guardianship order that the Court will issue. There are no general or statutory guidelines but, generally speaking, the guardian is granted full rights to make decisions on behalf of the minor. This means the guardian can decide who the minor should live with, where the minor should go to school and what medical decisions are in the minor’s best interest .
The court will likely require the guardian to file periodic reports every year detailing decisions and other actions taken in the interest of the minor. The reports allow the court to make sure the guardian is handling his or her duties appropriately for the duration of the guardianship. Like most court orders, if the guardian acts poorly, the court can terminate the guardianship or assign a new guardian.
Common Questions Relating to Guardianship
When it comes to legal guardianship of minors in Pennsylvania, many families, parents, and even schools have similar questions. Here are answers to some of the most common inquiries.
How Long Does Legal Guardianship Last? — In Pennsylvania, a guardianship for a minor remains in place until the minor is 18. However, it’s important to maintain the guardianship throughout the majority of the minor’s life. If you haven’t petitioned for guardianship by the time your student is 18, there will be a hearing and you will be appointed the guardian of the minor, but you will be the guardian of the adult – not minor child.
What If It’s Not Your Own Child That Needs a Guardian? — In general, you cannot be the legal guardian of any other teenager or minor that lives in your home without permission from your own children and the other children’s parents. This is due to limitations a court places on legal guardians.
What Should You Do If You Are Pursuing Legal Guardianship and the Birth Parent Won’t Give Up Custody? — You must file your petition for guardianship, serve a notice to all of the child’s natural parents as well as the child (unless they are 14 years old or older and then you don’t need to serve them). You will then have a hearing at which time the court will determine custody by only what is in the best interest of the child.
Will Your Parents Lose Their Rights? — Yes, the parents’ rights will be terminated. This means, simply, that they will no longer have custody or control over the child. It does not mean, however, that the child will lose his or her biological parents. The child will still have a legal connection with those parents.
How Could a Guardian Ever be Appointed Against the Wishes of Biological Parents? — This happens when a parent and a guardian go into court and allege that the child will be harmed by the parent if they remain in his or her care. A judge will need to agree that the child would be in more danger under the biological parent’s guardianship than a potential foster parent.
Can Parents be "Commended" to a Guardian? (meaning, both parents agree to the guardianship) — This is not commonly seen, but it is possible. If both parents are in agreement about the guardianship, then it is likely that the court will appoint a legal guardian to the child in the best interest of the child.
What if You Live in New Jersey, and Your Ex- Spouse Lives in Pennsylvania — but Your Children Live in Pennsylvania with You, do You Need to Obtain Guardianship in New Jersey? — No. The state where the child lives must obtain guardianship. However, the child parents will have to appear before the New Jersey court and obtain permission to leave the state. The burden of care will not be on the parent who does not make their home in the state where the child resides.
What if One Parent is Not Living in Pennsylvania but Does Have Custody Over the Minors — Will the Court Change Custody? — No. The only way the court will ever change custody is if the home life of the child is in danger or is proven to be unfair or unsafe.
What is the Difference Between Adoption and Guardianship? — Adoption is forever. Adoption turns that child into a legal extension of the family – a legal child. Guardianship, though, is for a specific period of time in the child’s life. Guardians are often distant relatives or family friends who take over the care and responsibilities of the minor child during an emergency event like incarceration or death.
Helpful Sources for Legal Guardianship
Administrative Office of Pennsylvania Courts (AOPC)
The Administrative Office of the Pennsylvania Courts runs the official website for Pennsylvania’s Unified Judicial System. It houses the Guardianship Tracking System (GTS) for Guardianships in Pennsylvania and a number of other useful databases.
Web: http://www.courts.state.pa.us/
Phone: (717) 231-3300
Pennsylvania Bar Association’s Guardianship Program & Manual
The Pennsylvania Bar Association’s Guardianship Program issues an updated "Guardianship Manual" annually, which is available online. The Office of the Public Advocate Guardianship Program and the Pennsylvania Guardianship Association publishes a "Guardianship Notebooks," which is available for purchase here.
Web: http://www.pabar.org/
National Guardianship Association
NGA is a national voluntary association of individual and corporate professionals who provide guardianship and conservatorship services in the United States. The NGA provides continuing education opportunities and establishes National Guardianship Standards to which programs and practitioners can strive .
Website: https://www.guardianship.org/
Autism Speaks
This advocacy organization provides information and resources on many aspects of autism, including special needs planning. Their site includes a variety of resources to help families understand both the legal and medical issues involved in autism spectrum disorders, as well as links to additional useful sites.
Website: https://www.autismspeaks.org/
Disability Rights Network
DRN is a private, nonprofit law firm dedicated to preserving civil rights for persons with disabilities and increasing their independent living opportunities.
Website: http://disabilityrightspa.org/
Phone: 800-692-7443
Special Needs Alliance
The Alliance is a national organization of lawyers dedicated to assisting people with a progressive or permanent disability create and maintain their estate plans. Their mission is to directly benefit people with special needs. In addition to estate planning, the SNA also focuses on improving public benefits such as Medicaid and Social Security for members, and helps practitioners coordinate services for vulnerable clients.