The Burden of Proof Is Going to Be on the Person Seeking Guardianship
Video Transcribed: I want to talk to you about defending against guardianship. I’ve done some of this work and I can tell you that, frequently, this becomes an issue in difficult times in families, which is often when you find yourself in any kind of custody or family court litigation, probate court litigation. Typically, it’s when things are not right going well.
You may find yourself served with guardianship if you have relatives who believe you are unfit, or if you have relatives who believe they’re a better choice. Sometimes it can say simply that the relatives believe they’re a better choice to parent your child than you are. And you may not know that this is coming until you get served with papers, or until your child doesn’t come home from school when they should have.
What should you do if you’re served with guardianship papers? Well, first and foremost, you want to take note of… Anytime a guardianship has been filed and if you’re served with papers, there’s going to be a court date on the papers that will say it will be for what’s called a show cause hearing or a hearing on general guardianship. If a special guardianship was issued where the immediate custody transfers on an emergency basis, then there’ll be what’s called a show cause hearing set, which is basically a hearing where the court determines whether or not there really is an emergency to justify this.
The reason for that is that, much like an emergency custody order in divorce litigation or child custody litigation between parents, special guardianships are done on an emergency basis on the basis of ex parte proceedings. In other words, the individual seeking that guardianship goes in front of the judge and makes certain allegations and the judge will make a decision as to whether or not that rises to the level of an emergency. And if it does, then they’ll enter a special guardianship, immediately naming that person as guardian and immediately awarding them custody of the minor child or children.
And at that point, if that’s happened, your typical notice is going to be that your child may if they are attending school, they may not come home from school one day and, the next thing you know, you’re served with papers. There will be a hearing date on those papers. It’s very important you make a note of that and, obviously, you want to appear for that hearing. Because if you don’t, you’re going to get defaulted. That’s the first thing.
The second thing is this is another one of those situations that I would posit is what you might call a legal emergency. The next thing you want to do is get a real good attorney who knows guardianship law. Now, the standard you’re dealing with in a guardianship that’s being done over your objection, and I’m going to assume for the point of this discussion, that you didn’t consent to this and you’re not going to consent to this.
The standard you’re dealing with is that guardianships are entered when they’re necessary or convenient. But when it’s being done over the objection of a parent, basically, you’re talking about an unfitness standard. They are going to have to prove that you, as a parent, are unfit to have custody and care of that child, thereby justifying appointing a third party to do the job for you.
When you get a lawyer, your lawyer’s job is going to be, basically, to present evidence that you are fit. Now, in order to prepare for that, what you’re going to need to be able to show, first of all, you want to know what the allegation is that establishes a cause to believe you might be unfit.
And some of those allegations could be the same kind of things that lands you into private court, allegations of neglect, allegations of abuse. If you have somebody who is a dangerous party around the child, that could get you there.
I’ve seen them enter it for reasons such as dental neglect or medical neglect, somebody who has untreated mental health issues, somebody who has unstable housing, substance abuse, things like that are some examples of when that might be entered.
I’ve also worked on at least one case, and I will probably elaborate on this in a future video, but where if the child just doesn’t know the parent and they know the third party that’s seeking guardianship better as the parental figure, the court may decide to enter a guardianship on that basis.
But, essentially, the reasoning behind it is going to be that there is some kind of facts, circumstances, that make you unfit to be the caregiver. The obvious way to prepare for this is to present evidence that whatever they’re alleging isn’t the case.
If it’s a situation of neglect, well, you want to show that you’re not neglecting the child. If it’s a situation of abuse, you want to be able to counter those allegations. The burden of proof is going to be on the person seeking guardianship, but you should come to court prepared to disprove whatever it is that they’re alleging, or at least show to the court that’s not the case.
The burden of proof in guardianship is going to be clear and convincing evidence, which is higher than your standard civil court standard of a preponderance. But you’re not talking about a beyond a reasonable doubt standard like you would have in criminal court.
If they can present a pretty good amount of evidence to show the judge that this might really be the case, then it’s probably getting entered. And judges have pretty broad discretion when it comes to guardianships. As long as they stay within constitutional confines, they have pretty broad discretion.
Bear this in mind when you’re dealing with this. Even though the burden of proof is on the other side, when you’re getting ready to go to court on this and you’re preparing evidence for your attorney, you want to present them with any evidence that tends to disprove the allegations contained in the guardianship petition.
And this is a good argument for keeping meticulous records when it comes to your children. I mean, one would hope you never find yourself in this situation but if you ever do, that record keeping is your best bet to avoid a problem.
That’s, essentially, defense against guardianships. The bottom line is if the court has no good reason to find that you are unfit then, constitutionally, the court cannot appoint a guardian over your objection. It’s all about establishing, “I’m fit. The kids go to school on time,” if they’re in school. “Kids get fed regular meals. They’re eating reasonably healthy. I’m not violent. I’m not abusive.” If it’s a drug allegation, “I’m clean.” If it’s an allegation about some third party being around, well, then they need to not be around.
If it’s an allegation about untreated mental health then, obviously, get records that show, “No, I’m in treatment. I’m compliant.” That’s the kind of thing that you want to present. And you want to get a good lawyer because this is a big deal and it does affect your rights.