Parents can ask the court to remove their minor child's guardian

You may have decided that a relative should be guardian of your children because you were not able or available to take care of them.  You may have agreed that the relative should be appointed guardian by signing an assent to the guardianship.  Or a judge may have appointed the relative to be guardian without your agreement.

If you are a parent and

  • your children have a guardian, and
  • you are now able or available to take care of your children, 

you can

If you are a parent and

  • your children have a guardian, but
  • you are not yet able to take care of your children, and
  • you think that it is your best for your children to have someone else be their guardian,

you can 

  • ask the guardian to file a petition to resign as guardian requesting that someone else be appointed guardian, or
  • file a petition to remove the guardian and appoint someone else to be the guardian.

You sign the petition under oath, swearing that the statements in it are true and correct to the best of your knowledge.

A child over the age of 14 can ask the court to remove their guardian

If you are a child over the age of 14 and

  • you have a guardian, but
  • you think that it is best for you that someone else be your guardian,

you can 

You sign the petition under oath, swearing that the statements in it are true and correct to the best of your knowledge.

Can anyone besides a parent or child over 14 ask that a guardian be removed?

Any person interested in the child's welfare can file a petition to remove the guardian.

Do you have to give reasons?

Yes.  The petition form has places where you give your reasons for removing the guardian.

They are:

  • The biological parents can resume their parental responsibilities
  • The minor has been adopted
  • Other reasons

What do I need to show the judge to remove the guardian?

When you file a petition to remove the guardian, you must show the court that you are now able and available to take care of your children.  If you can do that, the court should return your children.

Your children may have a guardian because you did not or were not able to take care of them.

You may have a guardian because your parents did not or were not able to take care of you.

The court calls this being "unavailable or unfit" to take care of your children. When you file a petition to remove the guardian, you are not "unavailable or unfit" just because:

  • You are low income;
  • You are disabled or on Social Security Disability or Supplemental Security Income;
  • You have been homeless in the past;
  • You were a victim of domestic violence; 
  • You needed to take a temporary break from parenting due to health problems, including emotional and mental health problems which are now under control;
  • DCF was involved at some time in the past.

The guardian does not have the right to keep the child just because the guardian has more money, or owns a home, or lives in a town with a better school system, or can provide a nicer living space, or because the parent once agreed the guardian could have custody.

On the other hand, parents with ongoing substance abuse problems or an unresolved serious mental health problems who cannot care consistently for their children, may not be able to get their children back.

What happens after I file a petition to remove the guardian?

The court will give you a Notice of Hearing. The Notice of Hearing will say when to come to court for a hearing.

Arrange to serve the Notice of Hearing. Attach a copy of your petition to remove the guardian and give them to a deputy sheriff or constable. The Court has information about serving the Notice and Petition.

Who must be given notice of the hearing on the petition?

  • The minor if over 14 years old
  • the guardian
  • the parents of the minor if their parental rights have not been terminated or if they have not sign a voluntary surrender of the child for adoption
  • any other person that the court has ordered be given notice

The court has a Notice of Hearing form

How do I show that I have served he petition and notice of hearing?

The person who served the papers fills out and signs a Certificate of Service. It is your responsibility to be sure that the Certificate of Service is returned to the court on time.

What happens when you get to court?

Before you see the judge, you will probably go to “dispute intervention” with a Probation Officer.   In the dispute intervention process you may be able to make an agreement with the guardian. 

How does the court actually remove a guardian?

The court removes the guardian at a court hearing.

It removes the guardian on a court form called Decree and Order of Termination of Guardianship on a Petition for Removal

On the Decree and Order, the court can say, among other things:

  • that the parent or parents can resume parental responsibility
  • that the minor was adopted
  • that someone else is being appointed to be guardian
  • that the guardian is being investigated or has charges pending for assault and battery and/or neglect of a minor
  • that the guardian is not acting in the best interests of the minor
Produced by Jeff Wolf (Massachusetts Law Reform Institute) with help from Veronica Serrato (Volunteer Lawyers Project)
Last Updated July, 2011
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