A Word on Guardianships

In the previous issue of Maumelle Magazine, I discussed my views on adoption and the choices available to those who may be considering adoption as a way to grow their family. In this article, I’d like to discuss what’s known as a guardianship. For purposes of this article, I will only be discussing guardianships over minor children. And more specifically, emergency temporary guardianships over minor children.

So what is a guardianship? A guardianship is a written document, signed by a judge, that allows a person (guardian) to be in control over the care and custody of a minor (ward). While similar to adoption in some ways (i.e., custody and control), the main purpose of a guardianship is to protect the ward, and does not involve the termination of parental rights.

As an attorney who practices in the areas of family and probate law, I receive many panicked phone calls from grandparents or other relatives that sound something like this: I just found out that my son/daughter (for ease of reading, we’ll say daughter in this article) is doing drugs again, this time with her kids in the home! I have my grandchildren with me now but I’m afraid she’s going to come and take them from me because she has done it once before! What can I do to stop her?

Unfortunately, this situation is common. And it’s one our courts take very seriously – so much so that our laws allow anyone who is eighteen or older, of sound mind and not a convicted or unpardoned felon to file a petition for emergency guardianship over a child. In other words, you do not have to be a relative to seek a guardianship.

In order for a court to find that an emergency guardianship is necessary, there must be an actual emergency. While I am inclined to err on the side of caution when it comes to the well being of a child, there are statutory guidelines that lawyers must look to when deciding whether to file an emergency petition for guardianship. When it comes to a child’s physical or emotional well being, Arkansas law says there must first be an imminent danger to the life or health of the child before an emergency guardianship will be ordered.

So let’s get back to the grandparent who has taken her grandchildren away from their mother. In this case, given the details of what the grandparent has told me, I would consider there to be an imminent danger to the life or health of the children for several reasons.

First, if mom is impaired in any way, or has a habit of impairment, she is a danger to her children. What is to stop her from loading the kids in a vehicle and driving while impaired? Moreover, depending on the age and curiosity of the child(ren), there is a risk of ingesting or inhaling the drugs mom is taking.

Furthermore, not only are there imminent medical health risks associated with drugs (i.e., inhalation, ingestion, etc.), there are physical risks as well. To purchase any kind of illegal drug, there must be a transaction. In this case, we have no idea where or how mom is getting her drugs. There is the real and frightening possibility that her dealers are coming to her home to make a transaction, which means she is associating with potentially dangerous people within feet of her children.

If you know of a friend or family member who has been through the emotional process of seeking a guardianship, their story may or may not match up with my example. But all guardianships, whether they involve drugs or alcohol or abuse or neglect, have the same goal: to protect the best interest of each child involved. That is the goal for most proceedings involving children and it is one that should be at the forefront of your mind.

While the scenario above is common, there are also other less severe situations in which the parent is just going through a hard time, and may need help getting back on her feet. Usually, those seeking a guardianship are concerned about the parent(s) and the children who may be in imminent danger. This situation arises most frequently when a grandparent is faced with the decision to remove a grandchild from their own child, whom they have loved and supported since birth. This is not an easy decision, and should not be made lightly. But it is important to remember that it is our job as adults to protect the physical and emotional well being of children. Their best interest must come before all others.

So let’s talk a little bit more about process. You’ve made the decision to ask a judge to remove a child you care about from his or her home due to some sort of imminent danger. What next? The following steps will detail the process of seeking an emergency guardianship:

1.     Petition: A guardianship petition is a written request to the court asking that  a guardian be appointed for a specific minor. The first step is to file an emergency petition with the circuit clerk’s office.

2.     Emergency Order: With the petition, your attorney should include a proposed emergency temporary guardianship order for the judge to sign. If the judge agrees that an emergency order is necessary, he or she will sign the order and file it with the circuit clerk.

3.     Hearing: If a judge signs an order for emergency guardianship, there must be a hearing within three working days of the entry of the order. While Arkansas law requires notice to parents, due to the emergency nature of the situation, a judge may appoint a temporary guardian with or without notice to the parents if their whereabouts are unknown or cannot be learned through a reasonable search. A judge may extend a temporary guardianship for ninety days at the first hearing and even ninety more days if the court finds after another hearing that there remains an imminent danger to the life or health of the minor if the temporary guardianship is not extended.

4.     Permanent Guardianship: If, between the first and second temporary guardianship hearings, you believe that the guardianship should be made permanent, your attorney should file a petition for permanent guardianship, which he or she will be able to argue for at the second hearing. Remember, the emergency guardianship is temporary and may expire, so filing a petition for permanent guardianship will allow the judge to consider making it permanent.  

I’ve given you a lot of information about guardianships and what it takes to get one; however, no one article or blog post should be your only source for information when considering a decision like filing for a guardianship. If you feel a guardianship may be necessary for a loved one in your life, schedule a time to speak with an attorney who regularly practices in this area to discuss your options.