Court appointment of a permanent guardian

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This article has information about getting a permanent guardianship of a child.

When can the court appoint a guardian for a minor?

In Massachusetts, the court can appoint a guardian for a minor if:

  • The minor's parents have died or incapacitated,
  • The parents consent,
  • The parents' parental rights have been terminated,
  • The parents have signed a voluntary surrender of the child for adoption, or
  • The court finds the parents unavailable or unfit to have custody.

Massachusetts General Law, Chapter 190B, Section 5-204(a)

What does a parent being “unavailable or unfit” mean?

Unavailable or unfit are terms the court uses to mean that a parent is not able to fully care for the needs of their children due to extreme circumstances. Under Massachusetts law, a parent is usually considered the best person to care for a child. A guardian cannot be appointed because another person would do a good job or a better job than the parent.

Under Massachusetts law, “unfit” means much more than simply not doing a good job as a parent; it means that the parent has “grievous shortcomings,” as described in the Adoption of Rhona.

Common factors that may lead a judge to decide a guardianship is necessary because a parent is not available or not fit include things such as:

  1. Drug and/or alcohol use by a parent,
  2. Criminal history of a parent,
  3. Domestic violence in the home of the parent,
  4. Abuse or neglect of the child by the parent,
  5. A parent’s inability to manage money,
  6. A parent’s homelessness, 
  7. A parent’s inability to provide economically for the child,
  8. The child’s health and educational needs are not being met.

While the court can consider many things to decide if a parent is fit, having one of these factors does not automatically make someone unfit to parent their child. The court has to consider the specific facts of each case to make that decision based on what they believe is in the best interests of the child.

How does the court decide if a parent is not fit?

For a court to appoint a guardian without a parent agreeing to it, the judge must decide that there is “clear and convincing evidence” that each parent who does not agree to the guardianship is “unfit” to have custody of the child. For more information about a parent’s “fitness”, you can read the court case Guardianship of Estelle, which goes into detail about how the court decides if a parent is able to take care of their child.

“Clear and convincing” is the standard of proof in guardianship cases, which governs what amount of information the court needs to use to make their decision. This is a high standard of proof. The court must have little or no doubt that a guardianship is necessary to appoint the guardian over the parent’s objection.

In addition, the “burden of proof” is on the petitioner and is not on the child’s parents. This means the petitioner must show that the parents are not fit, instead of each parent needing to prove that he or she is fit. You can read more about this burden of proof in the case of Petition of Robert Kauch.

Who can ask the court to appoint a guardian of a minor?

Any person that is interested in the welfare of the child can petition, or ask the court to appoint a guardian for a minor child.  In general, this would include the parents of the child, a minor child who is at least 14 years old, a relative of the child, or a family friend.

Who can be appointed guardian?

The court can appoint any person if it decides that the appointment is in the child's best interests. The minimum requirements are that the person is:

  1. At least 18 years old,
  2. Lives in the United States, and
  3. Not have a criminal record including child abuse or neglect.
Is there anybody that the court will not appoint as guardian?

Yes. The court will not appoint an adult who is currently being investigated for child abuse or neglect. The court will also look at the potential guardian’s criminal record and court records for cases of abuse or neglect of a child.

Can the minor child choose their guardian or agree to the guardianship?

If the child is over 14 years old, the court has to take into consideration who the child wants as their guardian.

However, the court must still decide if the person chosen by the child will be a good fit. If the court decides that it would not be in the child’s best interests for the person they chose to become guardian, the court will appoint someone else.

Also, a child over 14 years old can agree to the appointment of their guardian by signing a Notarized and Verified Consent or Nomination form and filing it with the court.

Can a parent choose a guardian for their child or agree to the guardianship?

A parent can choose a person who would act as a guardian over their child in the event that something were to happen to the parent. A parent or other interested party can also agree to the appointment of a guardian of a minor by signing a Notarized Waiver and Consent to Petition for Guardianship of Minor form.

This is an important form. If you sign it you give up your right to be notified of any required court hearings concerning the case.

If a parent agrees to appoint a guardian, does the person they chose get any special preference?

Yes, a guardian appointed by a parent or previous guardian is the first choice over any other person who may be appointed as a guardian by the Court, so long as the parental appointment of a guardian has not been prevented by an objection from:

  • the minor if over 14 years old,
  • the other parent if their parental rights have not been terminated, or
  • a person other than a parent who has had custody of the minor or with whom the minor has resided during the previous 60 days.
Which court do I file my petition to appoint a guardian in?

You file in the Probate and Family Court in the county where the child lives. If there is an ongoing case involving the child in a Juvenile Court or District Court, you can file your petition in that court.

What papers do I need to file at court if I want to be appointed as the guardian of a minor?

In general, you’ll need to complete and file the following forms in the Probate and Family Court:

If the parents and/or the child if they are over 14 years old agree to the guardianship, you should also file the following:

The Juvenile Court has their own versions of many of these forms. If there is an ongoing case in the Juvenile court, you can find their version of these forms on the court's website: Juvenile Court Department Guardianship Forms.

How much does it cost?

There is no cost to file the Petition to Appoint a Guardian.

The cost of service, or the cost of having a sheriff provide the documents to the other people involved in your case, varies from case to case. You can ask the clerks at the courthouse who should be able to estimate the cost of service for you.

If you do not know the address of the person who you need to serve, you may have to publish the notice in a newspaper, which also comes with a cost.  

What is the bond?

In order to be appointed, the guardian must sign and file the bond. The bond is an enforceable promise to the court to faithfully carry out the legal duties of a guardian. On the bond, the guardian signs his or her acceptance of the appointment to be guardian.

The law requires a "surety".  A surety is a person who also signs the bond.  By doing so the surety is also responsible to the court for the guardian carrying out his or her duties faithfully.

The court can decide that a surety is not required. Since the guardian does not control the assets or income of the minor, the court usually does not require sureties.

What if I cannot afford the bond or the service fees?

You can request that you not have to pay filing fees and basic costs through a form called an Affidavit of Indigency. The form will ask for information about your income and what court costs you would ask to be waived.

Whom do I need to notify when I file the petition?

A petitioner has to provide notice, or have copies of their petition provided to all interested parties. The list of parties you need to give notice to is listed in Massachusetts General Laws Chapter 190B, Section 5-206 and in Probate and Family Court Standing Order 4-09.

The court has instructions about how to give notice after filing here Petition for the Guardianship of a Minor -  Instructions for Notice and a  Checklist for Notice in a Guardianship of a Minor.

Note: the checklist includes the spouse of a child if the minor child is married. However, as of 2022, people under the age of 18 are not able to be married in Massachusetts regardless of parental consent, so this specific requirement is no longer needed for notice.

How do I let the court know that I have notified all interested parties?

You must file a Certificate of Service, a sworn statement signed by the person who served the notice.

Who can object to the petition?

Any of the following parties can object:

  • The minor child if over the age of 14,
  • The other parent, as long as their parental rights have not been terminated,
  • A person other than a parent who has had custody of the minor or with whom the minor has resided during the previous 60 days

To object to the petition, you file an Appearance and Objection form with an affidavit or personal statement which tells the court the specific reasons that you personally object.

Who has the right to a court-appointed lawyer in a guardianship of a minor case?

The minor child has the right to have a lawyer to represent them if the court decides that the child's interests need to be protected. Additionally, low income parents have the right to a court-appointed attorney. For more information, see The right to a court-appointed lawyer in a guardianship case.

When does the guardianship of a minor end?

It ends when the child turns 18, unless someone petitions to end the guardianship sooner. For more information, see How to end a guardianship of a minor.

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