Sometimes, parents are not able to care for their children. For example, they may have trouble managing their parental responsibilities due to substance abuse. The parents may have agreed that a relative should take over parenting their children through a guardianship. The decision could have been made between the parents and guardian, or by a court.
After some time, things may improve and the parents may be ready and able to care for their child again. However, the guardian does not agree to return the child to their parents. To end the guardianship, the parents will need to ask the court to end the guardianship over their child.
There are three groups of people who can request to end a guardianship:
- The parents of the child,
- The child or children in the guardianship if they are at least 14 years old, OR
- Any person interested in the child’s welfare.
You will need to file the following:
- A Petition for Removal of a Guardian of Minor Pursuant to G.L. c. 190B, §5-212,
- A Military Affidavit, which tells the court if any of the parties involved in the case are in active military service, and
- An Affidavit Disclosing Care and Custody, which tells the court about any other court cases involving the child in the guardianship.
You can also get these forms from the Probate and Family Court in your county or at a court services center near you.
After you file, you must give “notice to interested parties”, meaning that you need to provide a copy of the Petition to anyone involved in the guardianship case. Typically, the party needs to notify the guardian(s), a child who is fourteen or older, and the other parents. You may need to “serve” the person, which means that you need to give a copy directly to the person through a sheriff or constable. See Mass. R. Dom. Rel. P. 4.
No, you don’t have to pay the court anything to file the Petition. However, you may need to pay to serve someone. The price to serve someone through a sheriff or constable is different in each county. In general, this amount can range from $35.00 to $55.00 per person. If you cannot afford to pay for service, you may file an Affidavit of Indigency to ask the court to cover the cost for you.
You can go to a Court Service Center near you to get help to fill out the right paperwork. There are Court Service Centers located in:
- Boston
- Brockton
- Greenfield
- Lawrence
- Lowell
- Springfield
- Worcester
The Court Service Centers have in-person and virtual times that they can meet with you to help fill out paperwork. However, the Court Service Center cannot give you legal advice or represent you in court. See Court Service Centers for more information about their hours and how to contact the center nearest you.
The Lawyer for the Day program can also help you. Lawyer for the Day programs are not available at every court location. However, you can check whether your court hosts a Lawyer for the Day by calling the clerk’s office or visiting the virtual registry for your court. You may need to schedule an appointment in advance or meet a certain income requirement to qualify for this program.
After you file and all of the interested parties have been served, you will need to file a “return of service,” which says that a person has been given a copy of the complaint. You should receive this paper in the mail from the sheriff or constable’s office.
After you file this document, the court will schedule a hearing to discuss ending the guardianship. It may take a few weeks or months before that court hearing happens.
In general, the court says that a guardianship case should take approximately eight (8) months from start to finish. However, it can take longer depending on things like if the guardians do not agree to end the guardianship or if the Department of Children and Families (DCF) has an open case with you.
Massachusetts law requires that a parent prove that ending the guardianship is in the “best interest of the child”. Part of deciding what is best for the child is the court deciding if the parent is “fit” to parent the child.
A fit parent is someone who is able to care for and meet the needs of their child. On the other hand, an unfit parent may be neglecting or abusing their child. A guardianship is created when the court decides that both parents are unfit or unavailable, and they appoint another person to care for the child instead.
To show that a parent is fit, the court wants to see that a parent’s life is stable and that they are willing and able to provide for their child. Being a fit parent does not mean that you have done everything right or that you are a perfect parent. You will need to show the court that there have been some changes in your life since the guardianship was created. These changes should include what you have done to manage the concerns that led the court to create the guardianship.
Some examples of positive changes that may show a parent is fit would be:
- Completing substance use disorder treatment.
- Having stable housing.
- Having consistent income, which could include cash assistance, disability benefits, a job, etc.
- Completing a parenting or anger management class.
- Going to counseling or therapy
- Leaving an abusive partner and/or getting a restraining order.
- Finishing your action plan with the Department of Children and Families (DCF).
- Regaining custody of other children who you are successfully caring for.
After you show the court that there has been a positive change in your life, it becomes the guardian’s job to show the court that you are still “unfit.” See Guardianship of Kelvin. If the guardian does not want to give up custody, they will try to show the court that you are still unfit. The guardian will probably bring up negative things about you, and bring up the reasons why the guardianship was needed in the first place.
If the guardian cannot show that you are unfit, the court should end the guardianship. The court will not keep a guardianship just because the guardian can offer a child more opportunities, has more money, or lives in a better school district. See Guardianship of Estelle; see also Custody of a Minor.
The guardian would need to show the court that a parent is not stable and cannot care for their child. The guardian could also show the court that the circumstances that led to creating the guardianship still exist.
A parent could be unfit if:
- The parent has refused to work with DCF or follow their action plan.
- The parent has untreated mental or physical health problems.
- The parent has an untreated substance abuse problem.
- The parent is homeless.
- The parent is currently in an abusive relationship with their partner.
- The parent has open criminal charges.
A parent may still be fit if they have one of the above factors. A guardian would need to show that there is a connection between the factor and the parent’s inability to care for their child.
For example, imagine a parent has untreated substance use disorder and they are currently living with an abusive partner. A guardian here might say that these factors could expose the child to abuse or neglect. Therefore, a guardian could show that these things negatively impact the parent’s ability to care for their child and the court may find that the parent is unfit.
A child, parent, and/or guardian may have the right to a court appointed attorney when someone files to end the guardianship. See The right to a court-appointed lawyer in a guardianship case; see also How do I ask for a lawyer in a Petition for Removal of Guardian of Minor or General Petition to modify?
There are three groups of people who can request to end a guardianship:
- The parents of the child,
- The child or children in the guardianship if they are at least 14 years old, OR
- Any person interested in the child’s welfare.
You will need to file the following:
- A Petition for Removal of a Guardian of Minor Pursuant to G.L. c. 190B, §5-212,
- A Military Affidavit, which tells the court if any of the parties involved in the case are in active military service, and
- An Affidavit Disclosing Care and Custody, which tells the court about any other court cases involving the child in the guardianship.
You can also get these forms from the Probate and Family Court in your county or at a court services center near you.
After you file, you must give “notice to interested parties”, meaning that you need to provide a copy of the Petition to anyone involved in the guardianship case. Typically, the party needs to notify the guardian(s), a child who is fourteen or older, and the other parents. You may need to “serve” the person, which means that you need to give a copy directly to the person through a sheriff or constable. See Mass. R. Dom. Rel. P. 4.
No, you don’t have to pay the court anything to file the Petition. However, you may need to pay to serve someone. The price to serve someone through a sheriff or constable is different in each county. In general, this amount can range from $35.00 to $55.00 per person. If you cannot afford to pay for service, you may file an Affidavit of Indigency to ask the court to cover the cost for you.
You can go to a Court Service Center near you to get help to fill out the right paperwork. There are Court Service Centers located in:
- Boston
- Brockton
- Greenfield
- Lawrence
- Lowell
- Springfield
- Worcester
The Court Service Centers have in-person and virtual times that they can meet with you to help fill out paperwork. However, the Court Service Center cannot give you legal advice or represent you in court. See Court Service Centers for more information about their hours and how to contact the center nearest you.
The Lawyer for the Day program can also help you. Lawyer for the Day programs are not available at every court location. However, you can check whether your court hosts a Lawyer for the Day by calling the clerk’s office or visiting the virtual registry for your court. You may need to schedule an appointment in advance or meet a certain income requirement to qualify for this program.
After you file and all of the interested parties have been served, you will need to file a “return of service,” which says that a person has been given a copy of the complaint. You should receive this paper in the mail from the sheriff or constable’s office.
After you file this document, the court will schedule a hearing to discuss ending the guardianship. It may take a few weeks or months before that court hearing happens.
In general, the court says that a guardianship case should take approximately eight (8) months from start to finish. However, it can take longer depending on things like if the guardians do not agree to end the guardianship or if the Department of Children and Families (DCF) has an open case with you.
Massachusetts law requires that a parent prove that ending the guardianship is in the “best interest of the child”. Part of deciding what is best for the child is the court deciding if the parent is “fit” to parent the child.
A fit parent is someone who is able to care for and meet the needs of their child. On the other hand, an unfit parent may be neglecting or abusing their child. A guardianship is created when the court decides that both parents are unfit or unavailable, and they appoint another person to care for the child instead.
To show that a parent is fit, the court wants to see that a parent’s life is stable and that they are willing and able to provide for their child. Being a fit parent does not mean that you have done everything right or that you are a perfect parent. You will need to show the court that there have been some changes in your life since the guardianship was created. These changes should include what you have done to manage the concerns that led the court to create the guardianship.
Some examples of positive changes that may show a parent is fit would be:
- Completing substance use disorder treatment.
- Having stable housing.
- Having consistent income, which could include cash assistance, disability benefits, a job, etc.
- Completing a parenting or anger management class.
- Going to counseling or therapy
- Leaving an abusive partner and/or getting a restraining order.
- Finishing your action plan with the Department of Children and Families (DCF).
- Regaining custody of other children who you are successfully caring for.
After you show the court that there has been a positive change in your life, it becomes the guardian’s job to show the court that you are still “unfit.” See Guardianship of Kelvin. If the guardian does not want to give up custody, they will try to show the court that you are still unfit. The guardian will probably bring up negative things about you, and bring up the reasons why the guardianship was needed in the first place.
If the guardian cannot show that you are unfit, the court should end the guardianship. The court will not keep a guardianship just because the guardian can offer a child more opportunities, has more money, or lives in a better school district. See Guardianship of Estelle; see also Custody of a Minor.
The guardian would need to show the court that a parent is not stable and cannot care for their child. The guardian could also show the court that the circumstances that led to creating the guardianship still exist.
A parent could be unfit if:
- The parent has refused to work with DCF or follow their action plan.
- The parent has untreated mental or physical health problems.
- The parent has an untreated substance abuse problem.
- The parent is homeless.
- The parent is currently in an abusive relationship with their partner.
- The parent has open criminal charges.
A parent may still be fit if they have one of the above factors. A guardian would need to show that there is a connection between the factor and the parent’s inability to care for their child.
For example, imagine a parent has untreated substance use disorder and they are currently living with an abusive partner. A guardian here might say that these factors could expose the child to abuse or neglect. Therefore, a guardian could show that these things negatively impact the parent’s ability to care for their child and the court may find that the parent is unfit.
A child, parent, and/or guardian may have the right to a court appointed attorney when someone files to end the guardianship. See The right to a court-appointed lawyer in a guardianship case; see also How do I ask for a lawyer in a Petition for Removal of Guardian of Minor or General Petition to modify?
The Court Service Centers can help you fill out Probate Court forms, by Zoom or in person.
Some Probate Courts have Lawyer for the Day programs. Contact the court directly to see if your court has one.
Learn more about finding a lawyer.