A guardian is a person, whom a court appoints, to care for the person or property of another. Generally, a court appoints a guardian for a minor if both of the minor’s parents are deceased or unfit. A court appoints a guardian for an adult if the adult is injured and unable to care for himself.
There are two situations in which you, as a stepparent, may need to seek guardianship over your stepchild:
- Your spouse (the child’s biological parent) has passed away or become an unfit parent. Typically, if one biological parent is deceased or unfit, the other parent gains custody. However, if the other parent is also deceased or unfit and the child lives with you, you may need to seek guardianship over the stepchild.
- Your stepchild is an adult or is about to turn eighteen and is disabled and unable to care for or make decisions for himself. You may then need to seek guardianship so you can make decisions for your stepchild.
As a stepparent, you have no legal rights over your stepchild. Thus, if both of your stepchild’s parents are unfit, or if your stepchild is an adult, you will need to ask a court for legal guardianship to make decisions for the child.
How Can I Get Legal Guardianship of My Stepchildren?
This post explains how to obtain legal guardianship of a stepchild, under the law of Oklahoma, where the Persaud Law Office practices. While guardianship law is similar in many states, each state has its own guardianship law. It would be wise to consult a guardianship attorney in your state to check your state’s guardianship laws.
The first step in gaining guardianship is to file a petition. File the petition in the county where your stepchild resides. In the petition, also explain why guardianship is necessary.
If the stepchild is a minor, state why the parents are unfit. If the stepchild is an adult or about to become an adult, show why the child cannot care for himself.
After you file the petition, ask the judge for a hearing. You will then have to send notice of the hearing to certain persons, as state law provides. If the stepchild is a minor, you will have to notify the biological parents of the hearing.
If there is an emergency, and you do not have time to give notice of the hearing to all persons required, you may ask the court for special guardianship. A special guardianship lasts for a specified number of days (thirty, in Oklahoma).
If the court appoints you a special guardian in the case of an emergency, then the court will generally set a review hearing, and you will have to give notice of the review hearing.
After everyone has been notified of the review hearing, any person who objects to the guardianship may appear at the hearing and present their objections. If anyone objects, the judge will likely hold a trial on the matter.
At the trial, each party will have an attorney and will present evidence in favor of, or in opposition to, the guardianship. The judge will then consider all of the evidence and decide whether you can be appointed guardian.
If no one appears at the hearing to contest your appointment as guardian, the judge will likely appoint you as guardian. Some states require you to pass a criminal background check before you can be appointed guardian.
Also, some states have laws prohibiting certain persons from acting as guardian. In Oklahoma, these laws include:
- You may not be appointed guardian of a child if you are a registered sex offender or have been convicted of certain crimes involving violence or abuse;
- If you are not legally present in the United States, you may not be appointed guardian of a child.
- You may not be appointed guardian of someone’s property if you have declared bankruptcy in the past five years or if you cannot pay debts as they become due. (However, if these circumstances apply to you, you may ask the court to appoint you the guardian of the person only. This means you will have the authority to decide your stepchild’s education, medical care, and place of living but will not have the authority to manage your stepchild’s property.)
Your Rights as Your Stepchild’s Guardian
Generally, a guardian stands in loco parentis, that is, in place of a parent. You will be able to decide your stepchild’s education, consent to the stepchild receiving medical care, and determine where the child will live. You will be able to transact business for the child and manage the child’s property.
Your Duties as Your Stepchild’s Guardian
Generally, you will have to file a report with the court yearly to account for your activities as a guardian. If the stepchild is a minor, you will have to send a copy of this report to the child’s parents.
You may also have to send a copy of the report to certain relatives of your adult stepchild. If you abuse or neglect the stepchild in any way, or if you take advantage of the guardianship for your personal gain, the court may terminate the guardianship. You may also face persecution for abuse or neglect.
The Difference Between a Guardianship and an Adoption
If you adopt a child, you become the child’s legal parent. You will also have the same rights as the child’s biological parent.
The parental rights of the birth parents will be forever terminated. The biological parents will have no rights at all concerning the adopted child.
However, if you become the guardian of a child, you do not become the child’s legal parent. The biological parent still retains certain rights. Often, in a guardianship, the court will allow the biological parent to visit a child under a guardianship.
Also, adoption is permanent. A guardianship is, by nature, temporary. If the parents regain their fitness, they may ask the court to terminate the custody of the child. For a disabled adult, if the adult’s incapacity ends, the adult may ask the court to terminate the guardianship.
It is often easier to gain guardianship than to adopt a child. Adoption is possible in Oklahoma and many other states only when the parents fail to support a child. And have failed to maintain a relationship with the child or have been convicted of certain crimes.
However, you may be appointed guardian if a court finds (for any reason) that the child’s parents are unfit.
Become a Guardian – Help a Child
If you have a stepchild, who needs a guardian, do not delay. Becoming a guardian may be the best way for you to be there for your stepchild. Here are some tips when seeking custody of your stepchild.
Even if it is not your biological child, you still want to be there for him. Consult a guardianship attorney today.
