Guardianships Are by Nature, Temporary
Video Transcribed: I’d like to talk to you a little bit about guardianship. To start with, let’s talk about the definition of what guardianship is, and under what legal authority a court can enter a guardianship.
Guardianships are basically a type of temporary caregiver situation, where the court will appoint a third party who is not a biological or adoptive parent of the child to care for the child whenever it is necessary or convenient. Guardianship basically comes into play in one of a couple of situations.
Parents can voluntarily enter into guardianship if they need to have third-party care for the child and have custody and control of that child. And they can sign documents to that effect, present them to the court, and the court will appoint that person to guardian because the parents have essentially said it’s necessary or convenient. The other circumstance is if the parents of the child or either deceased, or unavailable, or unfit. And in that case, the court can enter a guardianship based on the necessary or convenient standards.
Now, if both parents are available and do not consent to a guardianship, then the necessary and convenient is interpreted in the case law to mean that there must be a finding of unfitness on the part of both parents if they’re not consenting to the guardianship.
And the reason is, that under federal law, and this goes back to the case of Troxel v. Granville, parents have a fundamental Constitutional right to the care custody, and control of their children, provided that they’re fit parents. So, in order for a court to enter a guardianship over the objection of the parents, there’s a prerequisite that the court must find that they’re unfit for one or more reasons.
Guardianships are by nature, temporary, if the conditions that made it necessary or convenient to create the guardianship, and then the court is legally required to terminate the guardianship. However, the court can terminate the guardianship on the basis of a sliding scale if it feels like there needs to be slow progress towards getting back to reunification with the parents. Typically, what will happen in guardianship is, if the parents are contesting, the parents can petition the court to enter into a plan for reunification.
And, that will set out specific conditions, much like what happens in a deprived case, where these conditions need to be met in order to move towards a finding of fitness, to where the guardianship is no longer necessary or convenient. So, that’s basically what guardianships are, and the general idea of how they work.
In my next video, I’m going to talk to you guys a little bit about when you might want to look at having your child be placed in guardianship. And we’re going to talk about that next time. If you have questions concerning Guardianship in Oklahoma or fathers’ rights in Oklahoma, or you are looking for a divorce attorney for men, please go to dads.law where fathers are not disposable.