Guardianship FAQ2017-12-12T00:18:18+00:00
Guardianship FAQ

What is a guardianship?

When a court appoints a guardian to handle the custody and/or the financial affairs of another person it is called a guardianship.

Are guardianships used for adults or children?

Either. A guardian can be appointed for a child whose parents cannot care for the child, but guardianships are also commonly used for adults who are mentally handicapped or elderly. Our firm mainly handles guardianships of children, but we also have experience with guardianships of adults.

What are some common scenarios when a guardian is needed for a child?

Anytime a child is being neglected or abused, a guardianship can be a helpful tool to protect the child. For example, if a parent is homeless and cannot afford to provide necessities for their child, or if the parent is addicted to drugs or has mental health issues that impede their ability to care for or protect their child.

Are guardianships ever voluntary?

Yes. If a parent is going to be incarcerated, deployed, in rehab, or otherwise unable to attend to their child’s needs, the parent can pick a guardian and consent to a guardianship to make sure their child is cared for.

Are guardianships of children permanent?

Not exactly. Every guardianship is inherently temporary because a parent can ask the court to terminate a guardianship once the conditions that led to the guardianship have been corrected. The parent must also prove that terminating the guardianship is in the child’s best interest. However, if a parent never corrects the conditions or never asks for the guardianship to be terminated, then the guardianship will continue until the child turns eighteen.

What is an emergency guardianship?

Many times when a child (or an adult) is in need of a guardian, there isn’t time to schedule a court date and wait for a judge to hear the case. In those instances, a judge can hear a case the same day it is filed and can order an emergency guardianship be entered without giving the parents notice of the emergency hearing.

How long does an emergency guardianship last?

When the emergency guardianship involves a child, there is not an automatic date that the emergency guardianship expires, but the guardians must agree to come back to court, usually twenty days after the emergency guardianship was entered, so that a judge can decide if the emergency guardianship should continue. This gives the parents a chance to challenge the emergency basis of the guardianship. If this hearing has to be rescheduled or postponed, the emergency guardianship remains valid until the court can hear the case.

When the emergency guardianship is of an adult, it will automatically expire after thirty days regardless of whether or not the court has had a chance to have a hearing to decide if the guardianship should continue.

Most of our guardianship cases start with an emergency guardianship.

How is a guardianship different from foster care?

The main difference between guardianship and foster care is that DHS is not involved in a guardianship. The child will not have a caseworker assigned to them and the guardians will not receive any payment from the state for caring for the child (unless they otherwise qualify for state assistance such as food stamps, TANF, etc.).

Can a child in a guardianship ever be adopted?

Yes. In fact, in many cases, it is a requirement that adoptive parents have legal custody through a guardianship before they can proceed with a contested adoption. The ways in which a guardian can adopt are varied and complex, and many of the grounds for terminating parental rights are time-sensitive. If you are currently a guardian who is interested in adopting, please contact our firm to set up a free consultation to evaluate your case.

Are there any special requirements for a guardianship of a Native American child?

Yes. A guardianship of a child who is Native American must comply with extra federal and state laws and regulations. These law and regulations are based on the Indian Child Welfare Act, also called ICWA. These extra requirements are complex and absolutely mandatory. The consequences of non-compliance with ICWA can be devastating. Our firm is highly experienced in cases that involve ICWA, and clients often come to us after they have hired an inexperienced attorney or tried to handle an ICWA guardianship on their own. It is much easier and less expensive to comply with ICWA from the start, and we suggest you never try to handle an ICWA case on your own or with an attorney that is not an expert on ICWA and the associated regulations.

Articles:

Murphy Francy PLLC
252 W. 16th Street
Tulsa, OK 74119

Phone: (918) 895-8200
Fax: (918) 592-0040

Office Hours:
Monday – Friday
8:30 A.M. – 5:00 P.M.

This web page is provided by Murphy Francy PLLC for informational purposes only. It is not intended to provide legal or other advice and the transmission of this information does not create an attorney-client relationship between Murphy Francy PLLC and the reader.

Guardianship FAQ

What is a guardianship?

When a court appoints a guardian to handle the custody and/or the financial affairs of another person it is called a guardianship.

Are guardianships used for adults or children?

Either. A guardian can be appointed for a child whose parents cannot care for the child, but guardianships are also commonly used for adults who are mentally handicapped or elderly. Our firm mainly handles guardianships of children, but we also have experience with guardianships of adults.

What are some common scenarios when a guardian is needed for a child?

Anytime a child is being neglected or abused, a guardianship can be a helpful tool to protect the child. For example, if a parent is homeless and cannot afford to provide necessities for their child, or if the parent is addicted to drugs or has mental health issues that impede their ability to care for or protect their child.

Are guardianships ever voluntary?

Yes. If a parent is going to be incarcerated, deployed, in rehab, or otherwise unable to attend to their child’s needs, the parent can pick a guardian and consent to a guardianship to make sure their child is cared for.

Are guardianships of children permanent?

Not exactly. Every guardianship is inherently temporary because a parent can ask the court to terminate a guardianship once the conditions that led to the guardianship have been corrected. The parent must also prove that terminating the guardianship is in the child’s best interest. However, if a parent never corrects the conditions or never asks for the guardianship to be terminated, then the guardianship will continue until the child turns eighteen.

What is an emergency guardianship?

Many times when a child (or an adult) is in need of a guardian, there isn’t time to schedule a court date and wait for a judge to hear the case. In those instances, a judge can hear a case the same day it is filed and can order an emergency guardianship be entered without giving the parents notice of the emergency hearing.

How long does an emergency guardianship last?

When the emergency guardianship involves a child, there is not an automatic date that the emergency guardianship expires, but the guardians must agree to come back to court, usually twenty days after the emergency guardianship was entered, so that a judge can decide if the emergency guardianship should continue. This gives the parents a chance to challenge the emergency basis of the guardianship. If this hearing has to be rescheduled or postponed, the emergency guardianship remains valid until the court can hear the case.

When the emergency guardianship is of an adult, it will automatically expire after thirty days regardless of whether or not the court has had a chance to have a hearing to decide if the guardianship should continue.

Most of our guardianship cases start with an emergency guardianship.

How is a guardianship different from foster care?

The main difference between guardianship and foster care is that DHS is not involved in a guardianship. The child will not have a caseworker assigned to them and the guardians will not receive any payment from the state for caring for the child (unless they otherwise qualify for state assistance such as food stamps, TANF, etc.).

Can a child in a guardianship ever be adopted?

Yes. In fact, in many cases, it is a requirement that adoptive parents have legal custody through a guardianship before they can proceed with a contested adoption. The ways in which a guardian can adopt are varied and complex, and many of the grounds for terminating parental rights are time-sensitive. If you are currently a guardian who is interested in adopting, please contact our firm to set up a free consultation to evaluate your case.

Are there any special requirements for a guardianship of a Native American child?

Yes. A guardianship of a child who is Native American must comply with extra federal and state laws and regulations. These law and regulations are based on the Indian Child Welfare Act, also called ICWA. These extra requirements are complex and absolutely mandatory. The consequences of non-compliance with ICWA can be devastating. Our firm is highly experienced in cases that involve ICWA, and clients often come to us after they have hired an inexperienced attorney or tried to handle an ICWA guardianship on their own. It is much easier and less expensive to comply with ICWA from the start, and we suggest you never try to handle an ICWA case on your own or with an attorney that is not an expert on ICWA and the associated regulations.

Articles:

Murphy Francy PLLC
252 W. 16th Street
Tulsa, OK 74119

Phone: (918) 895-8200
Fax: (918) 592-0040

Office Hours:
Monday – Friday
8:30 A.M. – 5:00 P.M.

This web page is provided by Murphy Francy PLLC for informational purposes only. It is not intended to provide legal or other advice and the transmission of this information does not create an attorney-client relationship between Murphy Francy PLLC and the reader.