When an adult is deemed unable to make decisions or take care of themselves, a court may appoint a guardian. However, children are already legally incapable of making decisions or taking care of themselves. It is their parents’ responsibility to do these things for them, so what happens when a parent is unable to fulfill their parental duties due to illness, incarceration, death, or other circumstances? In these situations, one option is for a court to establish a minor guardianship.
What is a minor guardianship?
In North Dakota, minor guardianship, also known as juvenile guardianship, is a legal arrangement that allows an adult to temporarily make decisions and care for a minor child when the child’s parents are unable or unwilling to do so. This legal relationship allows the guardian to provide for the safety, well-being, and best interests of the child for the duration of the guardianship.
How and when can a minor guardianship be established?
There are two court processes that may be used to establish a minor guardianship: district court and juvenile court.
The district court process may only be used when all of the following requirements are met:
- A child’s parent is deceased;
- Either there is no living parent or the living parent’s parental rights have been terminated by a court order;
- The deceased parent had a will;
- The will is being probated in North Dakota;
- The will named a guardian for the minor child; and
- The person named as guardian in the will is the same person seeking appointment from the court.
The juvenile court process can be used when a child’s parent is deceased and one or more of the above requirements are not met, when the parents have consented in writing to the guardianship, or when the child is a child in need of protection as defined by N.D.C.C § 27-20.1-01(3).
Of the various paths to minor guardianship, the most complicated is the juvenile court process for a child in need of protection. This process requires at least one court hearing and a finding of clear and convincing evidence that the child is:
- Without the proper parental care or control necessary for their physical, mental, or emotional health, or morals, and this is not due primarily to a lack of financial resources;
- Without the proper parental care or control necessary for their physical, mental, or emotional health, or morals, due to the illness or disability of a parent;
- Abandoned or placed for adoption in violation of law;
- In need of treatment ordered by the juvenile court and not provided by their parents;
- Exposed to a parent’s chronic or severe use of alcohol or drugs; or
- A victim of human trafficking.
For example:
Situation A: A twelve-year-old child whose parents struggle with drug addiction and often leave her alone to care for her two younger siblings, sometimes for days at a time.
Situation B: A two-year-old child whose parents have intellectual disabilities. The parents utilize all available social services and have never missed an appointment for the child. The child’s doctor notes that he is healthy and well-nourished, but the parents occasionally smoke in his presence.
All three of the children in Situation A are in need of protection, but the child in Situation B is not.
Who can become a guardian of a minor?
A court may appoint any person who is fit and willing to serve as the minor child’s guardian and whose appointment is in the best interests of the child. In a district court case, the person appointed as guardian must be the person named in the deceased parent’s will.
What are the responsibilities of the guardian of a minor?
According to N.D.C.C § 27-20.1-15(2), the guardian of a minor must facilitate the child’s education and social activities, authorize medical or other professional care, and take reasonable care of the child’s personal effects. A guardian must also file an annual report with the court detailing the child’s wellbeing, including any change of residence, medical treatment, educational progress, financial changes, use of authority, and whether the guardianship continues to be necessary.
What rights do parents have during a minor guardianship?
A guardianship suspends, but does not terminate, the parent’s parental rights. However, under N.D.C.C § 27-20.1-13, parents retain their right to parenting time and contact with their child, to receive information about the child, and to inherit from the child. The parents’ rights to parenting time, contact, and information may be either limited or enforced by court order.
How long is a minor guardianship effective?
Typically, a court order appointing a guardian may be effective for up to one year unless the court finds good cause to set a different time frame, which may not exceed three years. At any time during the guardianship, the guardian may petition the court for permission to resign, or an interested person, such as a parent, guardian, or the child (if at least fourteen years old), may petition the court to terminate the guardianship early. If either of these situations occur, or within 60 days of the expiration of the guardianship order, the court will schedule a hearing to determine whether continuation is in the child’s best interests and whether the same or a new guardian should be appointed.
If you would like to discuss minor guardianships with an attorney, please contact us!
This article is for informational purposes only and is subject to our disclaimer.
