Legal guardianship is a very common family law topic in Virginia. When an individual is appointed as a legal guardian, they are recognized as having the legal authority and responsibility to act in another person’s best interests, on that person’s behalf.
While you may seek to become the legal guardian of an adult child or relative who is incapacitated or otherwise unable to make legal decisions for themselves, this post focuses on the process of seeking guardianship of a minor child. Here’s what you need to know about legal guardianship in the Commonwealth of Virginia.
What are the rights and responsibilities of a legal guardian?
As a legal guardian of a minor child, you are legally responsible for that child’s safety and well-being and must manage his or her personal affairs. This typically involves assuming physical custody of the child from their natural parents, and making important decisions regarding their education, care, health, discipline, finances, and more. In other words, a prospective legal guardian must be able to provide a suitable and safe permanent residence for the child in question, and be able to provide for his or her basic needs.
Legal guardianship is not the same as adopting a child. Assuming the child’s natural parents are still alive and consenting to the guardianship arrangements (i.e. not having custody revoked as an unfit parent), their parental rights are generally not terminated. They often still have the right to participate in the decisions made by a legal guardian on behalf of the child, even if they are not physically present. This being the case, the child’s natural parents may still be involved in his or her financial affairs, including management of the child’s estate.
If there are financial difficulties for the parents and/or the legal guardian in providing for the child, the Court may or may not approve a request for relief. For example, the Virginia Kinship Guardian Program (KinGap) offers eligible families financial assistance to guardians to facilitate the care and maintenance of a child in their extended family.
Common reasons to appoint a legal guardian for a minor child
In most cases of legal guardianship, a minor child’s natural parents select the guardian(s) to ensure continued care and safety of that child when they are unable to do so themselves. A few common reasons where a legal guardian may have to step in include:
- The death of one or both natural parents (this is typically addressed in the parents’ will)
- Long-term illness of one or both natural parents
- Incarceration of one or both natural parents
- Addiction recovery/rehabilitation of one or both natural parents
- Other extenuating circumstances wherein the natural parents’ home is unsafe or unfit for the minor child (e.g. civil or political unrest in their home country)
If parents have not appointed a legal guardian for their minor child in these circumstances, it’s possible that the child could go into the foster system. Legal guardianship, particularly by a relative of the child, is generally preferred to foster parents: Research shows that children who live with relatives are more likely to enjoy their living situation and feel loved/cared for, and are less likely to have behavioral issues than children who are placed into the foster care system by the state with non-relatives.
How to petition for guardianship of a minor child
If you are petitioning to be appointed as the legal guardian of a minor child in Virginia, here are the steps you will need to take with your local Circuit Court for an uncontested case*:
- Complete, sign, and notarize a Petition for Appointment of Guardian(s) of a Minor. This form establishes your intent and reason(s) to assume guardianship of the minor child and confirms that you are a suitable caregiver. If natural parents are living, they should also sign and notarize this form. Minor children over the age of 14 may sign the Petition for their own guardianship appointment as well.
- Obtain completed Exhibits from the child’s natural parents, including a copy of the child’s birth certificate and a letter of consent from the natural parents supporting your Petition (or certified copies of the parents’ death certificates if deceased).
- Complete, sign, and notarize a Consent Order for Appointment of Guardian(s) of a Minor. Be sure to leave space for a judge to sign and date the order. Living natural parents and minors over the age of 14 should also sign and notarize this form.
- Complete a Cover Sheet for Filing Civil Actions (Form CC-1416). Also known as the Virginia Civil Cover Sheet, this form is required to file any civil case in a Circuit Court in the Commonwealth of Virginia.
- File all of the above forms in person with the Civil Court where the minor child currently decides, along with the Court filing fee. If the child is not yet a Virginia resident, you may need to first file a Petition in a court where the child resides, requesting permission to relocate them to Virginia.
*Uncontested guardianship cases mean that any living natural parents support the appointment of a legal guardian for their child. If the natural parents do not give their consent, there may be additional Court hearings and steps in the process. Please consult with a family law attorney to understand the steps in a contested guardianship case.
What if the child is not a U.S. citizen?
Assuming legal guardianship of a minor child whose parents who are living abroad is not an uncommon scenario here in Virginia. The Court documents and process are roughly the same. However, in your petition and in the natural parents’ letter of consent, you will need to specifically address the circumstances in the parents’ country of residence that render it unsafe or unfit for the minor child to live there. You may also need to submit additional Exhibits as required by the Court.
Ask an experienced family law attorney
While it is possible to represent yourself in court when seeking appointment as a child’s legal guardian, working with a family law attorney can ensure that you don’t miss any important steps in the legal process. Our law practice has been helping Northern Virginia families with guardianship cases since 2001, and we are dedicated to working toward the best possible outcome for the child, the parents, and the guardian.
Are you seeking guardianship of an incapacitated adult child or relative? We can help with that, too. Contact the Law Office of Patricia E. Tichenor for more information.