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Guardianship-The Care Of Minor Children

© Susan M. Weschler

Guardianship is defined as a legal relationship in which an individual or co-persons are appointed by a court to take care of the needs of a minor child.

In the typical family, the married parents of the children are the natural and legal guardians to their children. If one parent should die, the surviving parent remains as the sole guardian to the children. In the event that the minor child (children) becomes orphaned by surviving both parents, it then becomes the state’s duty to select a successor guardian.

A judge of the probate court will issue an order after a noticed hearing has taken place. In most circumstances, the court will appoint the person who has been nominated in the parent’s will, unless of course, he/she is unwilling, on unable to perform these duties. If the parent’s will did not nominate someone, or if they died intestate (without a will), then the court must appoint someone who will act in the best interests of the child.

He or she must be the person who will be most capable of providing the basic necessities to the child, including food, clothing, shelter, medical care, and schooling. Equally important, the guardian must be capable of providing love, attention, and a positive environment for the child. When selecting a guardian who is appointed by the court and not by the parent’s will, the court must carefully examine all likely candidates among relatives and friends who would be willing to serve. The court must also take into consideration, any opinions or preferences expressed by the child or children.

When nominating a person to be guardian, parents should keep these questions in mind: Does the person have the maturity, integrity, experience, and physical ability that are expected in a parent?

Would he or she have a strong concern for the welfare of the minor child?

Does he or she have the ability to provide a stable environment to raise a child?

Can he or she provide the moral, financial, social, religious environment that is consistent with the parents?

In most cases, the parent’s usually nominate an alternate or successor guardian who will serve in the event that the choice of guardian is unwilling or unable to serve.

Once the guardians have been named, a periodic review of these choices is recommended, in the event that the minor child’s and/or guardian’s situation should change.