Guardianships for Children
Authored By: Iowa Legal Aid
Sometimes neither parent is able to take care of a child. This situation could be due to death, disability, or some other reason. In such cases, establishing a guardianship may be the best action to take. On the other hand, the child might be living with a relative or friend on a temporary basis. If one of the parents is available to authorize medical treatment and make other decisions for the child, a guardianship is probably not necessary.
Parents should consider all their options before agreeing to let someone else have a guardianship over their child. A guardianship may be hard to end and can last much longer than planned. A guardian has no legal obligation to allow the parents to visit unless it is ordered by a judge Also a child support action could be brought against the parents.
A school may tell a child's caretaker that a guardianship is needed to enroll the child in school. A school cannot require that a guardianship be set up. The child must live in the school district, but a guardianship is not needed to show where someone lives. The caretaker could explain that he or she is filling the role of a parent, and the child is living in the school district for that reason. The school could refuse to enroll a child who is just staying with someone in order to go to a certain school (unless the family uses Iowa's "open enrollment" law).
How a Guardian is Appointed.
In order to establish a guardianship, an appropriate guardian must be found. The guardian may be a relative or other person. The first step is to file a petition with the court. A person may petition to have himself or herself appointed as the guardian, or to appoint another family member or friend, etc. Two or more people may act as co-guardians of a minor. Normally, the guardian should be a resident of Iowa. A minor who is 14 or more years of age may also petition the court and ask the judge to appoint a guardian.
What the Filing Process Requires.
The process for establishing a guardianship begins with filing a petition with the clerk of court. The contents of the petition will vary slightly, depending on the situation. It will include basic facts such as the name, age, and address of the child. It should also tell where and with whom the child has been living during the last five years. The petition must also say if there are any other custody or visitation cases regarding the child.
Some petitioners may not be able to file for guardianship because they cannot afford the filing fee. In such cases, the court may let them file the case without prepaying the fees.
The Right to Representation and Notice.
Once the petition has been filed, notice must be served on the parents of the minor child. In addition, most of the time the court will appoint a lawyer or guardian ad litem to represent the minor child. The notice will need to be served on that person as well. However, the parents are not entitled to a court-appointed attorney.
If someone objects to who is appointed as the guardian, a hearing or trial on the petition will take place. At this trial, the petitioner has to present evidence to the court to establish the need for the guardianship. The law presumes that the parents are the best persons to have custody of their own children. If the parents do not consent to the guardianship, the petitioner will have to overcome this presumption. After the hearing, the court will enter a written order stating its decision. There is a 30 day appeal deadline.
Procedures After the Hearing.
If a guardian is appointed, he or she will need to sign an oath and have it notarized. The court will then issue "letters." These letters are the guardian's proof of authority to act on behalf of the ward. Normally, the guardian must also file a report with the court every year.
Ending the Guardianship.
The guardianship goes on until the child turns 18. If the parents want to end the guardianship sooner, they may have to file a "petition to terminate." The court will hold a hearing if guardians do not think the guardianship should be terminated. The court must then decide whether the guardianship is still needed. Under the law, if the request is denied, six months must pass before another petition can be filed.
Iowa Legal Aid provides help to low-income Iowans.
- To apply for help from Iowa Legal Aid:
- Iowans age 60 and over, call 800-992-8161 or
- apply online at iowalegalaid.org
Last review 8/7/13.