Legal Guardianship Versus Biological Parents: Know Your Rights

Who Are Legal Guardians and Biological Parents?

For the purposes of determining custody and parenting time, a legal guardian is not the same as a biological parent. While they may both have some legal rights, there are some significant differences that may affect how spoken or written agreements operate. It is important to be clear about this when they are first established, or when changes to an agreement are proposed to account for a parent’s new relationship. Do you want your partner to be a legal guardian to your children, or do you want that title for yourself? It is best to know the full implications of either option before making such an important decision.
In New Jersey, a legal guardian is someone who is granted full legal responsibility for a child who is not theirs. This responsibility may include things like making decisions about the child’s healthcare, religious upbringing, education and extracurricular activities. A legal guardian is someone who is designed to step in and take the place of a biological parent and assume their responsibility for the child.
A legal guardianship is obtained through a court order. It is granted based on many of the same factors that would come into play for a custody order . The most important component for issuing such a guardianship is whether it is in the child’s best interest and whether the biological parents agreed to this guardianship. After a legal guardianship is established, it can be modified or terminated by the court, or the biological parents. This is similar to custody determination, which is also created by a court and can be modified or terminated. However, neither the biological parent nor the legal guardian should act independently from the other in major issues concerning the child’s life unless they obtain permission from the court.
A biological parent is the person who gave birth to, or otherwise has genetic ties to the child. In New Jersey, parents are expected to act in the best interest of their children. This does not mean that a parent must agree to every decision made regarding the child’s education, healthcare, or upbringing. It means they must make decisions that support the child’s well-being and future. This includes judging the risks their decisions may pose to their child’s health and future, and also addressing their child’s needs by providing them with the best possible circumstances in which to be raised.

Legal Guardianship Process

When a petition is filed to appoint someone as legal guardian, the Court will set the matter for hearing and provide notice to parents. When the child resides or is present within the State of New Hampshire, notice to a parent is not required if the parent is deceased, has been imprisoned for more than a year, has deserted or abandoned the child or has not had personal contact with the child within the last year. There is a general oh presumption that someone other than a biological parent does not have the right to contest the parental rights of a natural parent. There are exceptions if a parent has abandoned a child.
The Court can grant the guardianship even if a parent contests the appointment of the individual. A parent has no right to see or have contact with the child if the Court terminates the parental rights, or finds that the best interests of the child will be served without parental contact. Parents have the right to appeal and ask the Court to review the decision and to have a hearing with respect to the appeal.
Parents have the right to counsel during the proceedings. Even if a parent does not contest the petition, the Court will appoint a guardian ad litem to represent the interest of a minor child who is subject to a petition. A guardian ad litem is a lawyer who represents the best interest of the child during the case. A guardian ad litem is not a lawyer for the child, they represent the child’s best interest.

Comparison of Rights and Duties

When a child is placed with a legal guardian, the roles and responsibilities of the legal guardian and the biological parents of the child are compared here. The legal guardian is generally responsible for the same rights of care, control, custody, and education of the child as a biological parent would be. The legal guardian cannot restrict the biological parent’s access to the child without court permission.
The biggest difference between a legal guardian and a biological parent is that a biological parent may unilaterally cut off the other biological parent from access to the biological parents’ child at any time. However, a legal guardian must seek and be granted a modification of the guardianship before he or she can terminate the rights of the biological parents, the gravamen of the termination being that it is in the best interests of the child. The same rule applies for when a legal guardian wishes to relocate to a different state with the child.
The biological parents may petition the Court for a modification of the guardianship as well by showing cause why the minor child should be returned to one or both of their parents. The biological parents can show cause by demonstrating that they are fit, able, willing and motivated to care for the child.
Where the legal guardian and the biological parents have overlapping spheres of authority concerns the legal guardian’s exercise of control over the child in certain particular areas. The legal guardian may elect not to make medical decisions on behalf of the child in certain limited scenarios. These include: non-routine dental procedures, childhood immunizations unless the child is susceptible to a communicable disease, the administration of psychotropic medication, where the treatment is not court ordered or otherwise approved, or where the treatment and/or medication presents a substantial risk of a significant adverse effect or serious side effect on the child.
In short, the sphere of authority related to the legal guardian overlap with the biological parent in the above applicable areas of control over the child. Otherwise, the biological parent has the preeminent right to control their child.

Effects on the Child

The impact on the minor child in both cases is significantly different, and this can impact the future choice of a biological parent to consent to a legal guardianship. A parent may feel that by consenting to a legal guardianship, they are somehow relinquishing their rights or giving up the right to parent that child. In fact, a parent may well choose to consent because they feel it is going to be a better option for the child because they know that they cannot take care of them.
On the other hand, in some cases, a biological parent may not choose a legal guardianship, either for financial reasons, or due to their own issues. Where there are significant parental issues involved, the parent who chooses guardianship may feel more secure in knowing that the court has made the decision to give full custody of the child to the other biological parent or guardian.
There is also the concern of stigma from others, and how it may affect a child to know that a parent consented to a legal guardianship. The child may wonder if they did something wrong. Oftentimes, the crucial questions to answer in court involve testimony that is too intimate to be shared even with a biological parent. Children are more commonly residing with one biological parent due to issues of abandonment, alcoholism, substance abuse, or intent to remove themselves from the responsibilities of being a parent. Children are also being taken into care due to issues of their being neglected or abused in a biological home.
It is difficult to imagine a little girl being taken into care due to abandonment or substance abuse by a biological parent and then later being returned home or served a court order requiring her to have contact with that same parent now that they are "recovered." How does this impact the child? Would it be better for the parent to consent to a legal guardianship? If the parent has not been in contact with the child for some time due to incarceration or substance abuse, what will the impact be on the child when the tribal court requires that parent to be provided with appropriate visitation?

Financial and Legal Aspects

As a legal guardian, your financial obligations can be significant. You are responsible for the day-to-day expenses of the child, including education, healthcare, food, and clothing. However, unlike biological parents, guardians are not obligated to pay child support to themselves. Nonetheless, there are financial implications that may arise when guardianship is granted for an extended period, particularly when public assistance is involved.
For biological parents, child support is often a contentious issue. When legal guardianship is established, child support obligations may shift. In some cases, the biological parents may still be required to pay child support to the guardian or the state, but this could vary depending on state law and the circumstances of each case.
In terms of custody decisions, legal guardianship can lead to further complications . If the biological parents wish to seek custody of the child, they may need to petition the court to reverse the guardianship decision. The burden of proof may be on the biological parents to demonstrate that they can provide in the best interests of the child, and the court may consider factors such as fitness, stability, and the emotional and physical needs of the child.
If the biological parents are deceased, the question of inheritance rights may arise. Generally, any property or assets owned by the child will pass to the child’s biological parents or biological relatives, not the legal guardian. It is important to review state inheritance laws and consult with a legal professional to understand how inheritance may impact the legal guardian and the child.
Ultimately, understanding the financial and legal implications of both legal guardianship and parentage is crucial for the child’s and the family’s best interests.

Examples and Case Studies

A legal guardian is an individual appointed by a court to take care of a child when the biological parents are unable. In most cases, a legal guardian is a relative of the child-an aunt, uncle or grandparent, for example. Legal guardianship does not terminate parental rights, nor does it modify child custody and support agreements. That said, legal guardianship can lead to a complex web of legal relationships.
Scenario: Grandparents as Guardians
Following the death of Michael’s mother in November, his father is serving a one-year sentence in county jail. Michael’s aunt and uncle have acted as his guardians for the past six months, since his mother’s death, while their application for legal guardianship is pending in the local family court.
Michael has been acting out at school and experiencing anger issues. Seven months into the guardianship period, Michael has skipped school 10 times and needs to repeat the 5th grade.
In this scenario, legal guardianship creates a complicated and potentially expensive situation, with a child possibly having to repeat a school grade due to a family situation he did not create.
Scenario: Guardianship Under One Roof
Becky has two daughters, age 3 and 5. Due to health problems, she has been living with her sister, Juliana, who also has two children. There has been some tension between the sisters, but they have gotten along well enough for living together. One night, however, a tense argument erupted in the back yard. The argument involved loud profanity, which was heard by Becky’s children. The next day, Becky moved out and sought sole legal guardianship of her children.
Here, the children’s biological parents were able to remove them from a potentially harmful situation without incurring the need for legal action.
Scenario: Restoring Parental Rights
Tom and Sarah are considering having a baby. They meet Julie, a woman in her mid-30s who is unmarried, has no health problems, and wishes to donate her eggs. Before long, they have a baby. However, the next year, Tom finds he cannot handle the responsibility and moves out. Sarah soon agrees to let her sister care for the child so she can travel for work. Chris, Sarah’s sister, registers for childcare services, and Calder is immediately awarded the Childcare Support Payment. Three years later when Sarah returns, she does not want to resume parenting. Chris applies to be the child’s legal guardian.
In this case, Sarah has lost the ability to care for her child, and she is legally obligated to make child support payments. If Chris obtains legal guardianship of Calder, she could receive government childcare payments and state-funded health benefits.
Scenario: Guardianship After Adoption
Willot is 13 and is home-schooled part-time. She spends the other half of the day in foster care. She has trouble with eye coordination that impairs her balance and muscle coordination. Willot’s doctor says it’s likely that a family history of alcoholism played a role. Alcoholism is a disorder of the brain, and it can be inherited. At the same time Willot is diagnosed, her older brother Arrin is diagnosed with Fragile X syndrome, a chromosomal disorder that is the most common form of inherited cause of learning disability and developmental delay.
Six months later, Willot is placed with a loving family. She’s had three foster families before. After two years, she’s adopted by the family. She begins to do well at school and makes new friends, and her repeating, stuttering speech begins to clear up. Arrin is her guardian until Willot’s adoption is complete. With the adoption complete, he is prepared to hand off the reins to the new adoptive family.
Here, the biological parent demonstrated alcohol dependence at the time of Willot’s birth. Her biological father may sue for custody because the alcohol dependence suggested Willot’s future was uncertain. The Uncle Arrin has had Willot removed from his home.
It can be challenging to navigate the fine points of legal guardianship law and determine when it is in the best interests of you and your family to pursue legal action.

Common Questions

When does legal guardianship start and end?
In Alabama, legal guardianship begins when the judge signs an order granting it and ends only when the court decides to terminate it.
What rights do legal guardians have to seek custody of the child?
In Alabama, a court may grant general "standing" if the petitioner is a biological relative. This includes parents, grandparents, siblings, and aunts and uncles. Standing allows a party to seek some type of visitation order with the child but the court will determine who has ultimate custody. If a biological parent wants the judges involvement then he/she must file an action in the court to determine custody. Once a custody case has been filed then the legal guardian can pursue custody as a third party intervenor.
How does the court determine custody of children?
The court will consider what is in the’s child’s best interest. There are different factors that are important to the Court. First, the court will consider the wishes of the child, then the parental fitness of the party seeking custody . Generally the biological parents of the child will be favored in the court’s decision.
Does a guardian have any rights to make decisions for the minor child?
A legal guardian has full authority to make decisions for the child that they would need to ask permission from the biological parent.
When can a legal guardian ask a court to remove a child from their home?
A legal guardian may be ordered to care for the child but can not ask the court to remove the child from their home. Only a biological relative that is granted standing or the Department of Human resources can file a petition to remove a child from the home.
Can the DHR terminate guardianship?
No, however DHR can seek custody. It is important to note that in order for DHR to get custody there must be an open case in DHR that has found a reason to assume custody.
Does a guardian have any obligations or responsibilities toward the minor?
Yes, a legal guardian has all the parental rights and obligations of biological parents to their own children.