Guides

How to Get Custody of a Child Without Going to Court?

Custody of another person’s child or children is a significant responsibility. In situations where parents are incapacitated, most states have rules that give priority to close family members like grandparents and familiar aunts and uncles, also called kinship car e.

Custody and guardianship can be very different things: custody is physical care while guardianship is responsibility for the child’s long-term maintenance and accepting liability for the child’s actions. If the child’s parents are alive and their parental rights have not been terminated they may be part of the child custody arrangement. A different sort of guardian is called a guardian ad litem. This person is appointed by the court to watch over a minor child during the process and ensuring that their best interests are served.

Courts are usually involved to assign permanent responsibility when weighing child custody options, taking into account things like child support, suitability of the caregiver, and needs of the child involved. But parents who can anticipate a situation where they will not be able to tend to the needs of a minor child may legally set up a custody arrangement without court involvement.

Aspects of guardianship to consider before agreeing to such an arrangement include:

the best interests of the child;
how child support is arranged;
whether the child can maintain close ties to siblings and continue in their current school or activities with established friends, and
access to necessary medical and psychological care.

How to Obtain Guardianship

In most instances, state agencies charged with protecting children (sometimes called the Department of Youth Services or the Department of Family Services) are required to seek out family members to place children with if their parents are not capable or available to raise them. Parents may also voluntarily surrender custody of a child for adoption. If children are taken into state custody, it is possible to become a guardian by volunteering for it through the agency. There is likely an interview with a case worker, evaluation of your home and review of your income to ensure each are appropriate for raising a child, and ongoing involvement by the state agency to ensure the child is well cared for.

Circumstances when guardianship may be appropriate:

when a parent has a terminal illness;
when the custodial parent is deployed with the military;
when a parent intends to be hospitalized for a period of time such as rehabilitation, or
when the custodial parent is incarcerated.

How to Get Legal Guardianship of a Child Without Going to Court

Parents who recognize that they are unable (or will soon be unable) to care for a minor child may appoint a guardian to take care of the child. This is done with the consent of the individual being named guardian. Such a guardianship takes effect when the child’s parent or parents die or become unable to care for the child. While the guardianship may commence immediately, the position is not legally established until the guardian files certain paperwork in court (generally the probate or family court):

• the parent’s signed document naming the individual as guardian;

• a document formally accepting the position of guardian, and

• a legal form requesting guardianship of the child.

Custody and Guardianship Issues

It is possible for the parents of a child to protest a guardianship. In recent years courts have tried to maintain family unity, resulting in fewer incidents of termination of parental rights, giving those individuals more say in their children’s care.

If the prospective guardian has a criminal record, the court will review it before granting custody.

Children over age 14 may also protest a guardianship in many states.

Another person who has had custody of the child for 60 days may lodge a protest against the naming of a guardian within a certain period of the legal notice that one has been named.

Do I need an attorney for help with child custody matters?

Attorneys are often helpful for simply navigating court requirements and can streamline some aspects of the process but are not required for many child custody and guardianship issues. In disputed custody situations attorneys may assist the parties in coming to a mutually agreeable and legally acceptable compromise for sharing responsibilities beyond financial support and physical custody.

What is Kinship Care?

About a quarter of all children who are not cared for by their parents are in the hands of family members. Among these are nearly 1.7 million children of incarcerated adults. This is called kinship care and may be officially sanctioned by courts or done less officially, but the latter may run into legal issues.

Relatives who have casual or temporary custody of a minor child have only limited authority for obtaining medical care, overseeing a child’s education, and may require frequent involvement of the child’s parents to navigate daily issues. In addition, the child’s financial needs are likely to fall entirely on the caregiver’s shoulders without a formal custody and support agreement.

Relatives are those most likely to be awarded court-ordered guardianship status for children of people who have deceased or are otherwise unable to fulfill the duties of parenthood. Guardianship may be temporary and may be rescinded at a specific time or with the consent of the parties involved, such as when the custodial parent becomes available (discharged from hospital, returned from deployment, released from jail, etc.).

Those who are sent to prison and must make arrangements for child custody and care during that period may be compelled by the sentencing court to put a formal guardianship in place. Courts will generally look first to available, geographically close family members in order to maintain a connection between the parent and child, which is proven to result in the best outcome for the child.

Resources for Kinship Caregivers

The federal office of child welfare offers resources and support for kinship guardians through http://www.childwelfare.gov. This website explains how to find childcare assistance, how to explain the parent’s absence, and how to prepare for adoption of the child.