Sometimes while a child has a guardian, things get better and the parents feel ready and able to care for their child again. But what if the guardian doesn’t agree to return the child? Then the parents need to ask the court to end the guardianship over their child.
There are 3 groups of people who can ask the court to end a guardianship of a minor:
- 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.
Note:
If the guardian wants to stop being a guardian, they can resign. You can also remove the child’s current guardian and replace them with a different person.
How do I ask the court to end the guardianship of a minor?
File these forms:
- A Petition for Removal of a Guardian of Minor Pursuant to G.L. c. 190B, §5-212,
- A Military Affidavit, telling the court if any of the parties involved in the case are in active military service, and
- An Affidavit Disclosing Care and Custody, telling 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 Service Center near you.
You don’t have to pay to file these forms.
After you file, you must give “notice to interested parties.” This means that you need to give a copy of the Petition to anyone involved in the case. This usually means:
- the guardian(s),
- the child (if 14 or older), and
- the other parent.
You may need to “serve” the person. To “serve” means that a sheriff or constable gives a copy to the person. See Mass. R. Dom. Rel. P. 4. The price to serve someone through a sheriff or constable is different in each county. It can range from $35.00 to $55.00 per person. If you can’t afford that, file an Affidavit of Indigency to ask the court to cover the cost for you.
After you file and all of the interested parties are served, you need to file a “return of service.” This paper says that a person got a copy of the complaint from the sheriff or constable. Each person served gets a “return of service”. The sheriff or constable should mail this to you once they serve everyone.
After you file the return of service, the court schedules a hearing to talk about ending the guardianship. It may take a few weeks or months before that court hearing happens.
A child, a parent, and/or a guardian may have the right to a court appointed lawyer when someone files to end the guardianship. See The right to a court-appointed lawyer in a guardianship case. Also see How do I ask for a lawyer in a case to change or end guardianship of a minor?
File these forms:
- A Petition for Removal of a Guardian of Minor Pursuant to G.L. c. 190B, §5-212,
- A Military Affidavit, telling the court if any of the parties involved in the case are in active military service, and
- An Affidavit Disclosing Care and Custody, telling 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 Service Center near you.
You don’t have to pay to file these forms.
After you file, you must give “notice to interested parties.” This means that you need to give a copy of the Petition to anyone involved in the case. This usually means:
- the guardian(s),
- the child (if 14 or older), and
- the other parent.
You may need to “serve” the person. To “serve” means that a sheriff or constable gives a copy to the person. See Mass. R. Dom. Rel. P. 4. The price to serve someone through a sheriff or constable is different in each county. It can range from $35.00 to $55.00 per person. If you can’t afford that, file an Affidavit of Indigency to ask the court to cover the cost for you.
After you file and all of the interested parties are served, you need to file a “return of service.” This paper says that a person got a copy of the complaint from the sheriff or constable. Each person served gets a “return of service”. The sheriff or constable should mail this to you once they serve everyone.
After you file the return of service, the court schedules a hearing to talk about ending the guardianship. It may take a few weeks or months before that court hearing happens.
A child, a parent, and/or a guardian may have the right to a court appointed lawyer when someone files to end the guardianship. See The right to a court-appointed lawyer in a guardianship case. Also see How do I ask for a lawyer in a case to change or end guardianship of a minor?
Common Questions
You don’t have to pay the court to file the Petition.
But you may need to pay to “serve” someone. The price to serve someone through a sheriff or constable is different in each county. It can range from $35.00 to $55.00 per person. If you can’t afford that, file an Affidavit of Indigency to ask the court to cover the cost for you.
A Court Service Center can help you fill out the right paperwork.
The Court Service Centers have in-person and virtual times that they can meet with you to help fill out paperwork. But the Court Service Center can’t 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 at every court location. Check if 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 get help from this program.
In general, the court says that a guardianship case should take approximately 8 months from start to finish. But, it can take longer. It depends on things like if the guardians don’t agree about ending the guardianship or if the Department of Children and Families (DCF) has an open case with you.
Massachusetts law says that a parent needs to 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.
What does being a “fit” parent mean?
A fit parent is someone who can 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. Then the court can appoint another person to care for the child instead.
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 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 fix the problems that made the court create the guardianship.
Some examples of good changes that may show a parent is fit are:
- Finishing treatment for substance use disorder.
- Having stable housing.
- Having consistent income. This can 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).
- Getting custody of other children back and you can show you are doing a good job caring for them.
If the guardian doesn’t want to give up custody, they will try to show the court that you are still unfit. After you show the court that there has been good changes in your life, the guardian has to show the court that you are still “unfit.” See Guardianship of Kelvin. The guardian will probably bring up bad things about you. They will bring up the reasons why the guardianship was needed in the first place.
If the guardian can’t show that you are unfit, the court should end the guardianship. The court won’t 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.
A parent has substance use disorder that is not treated. They are living with an abusive partner. A guardian might say that these factors could expose the child to abuse or neglect. So, the guardian could show that these things keep the parent from being able to care for their child. The court may find that the parent is unfit.
The guardian needs to show the court that a parent is not stable and can’t 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 in an abusive relationship with their partner.
- The parent has open criminal charges.
A parent may still be fit even if one of these things is true. A guardian needs to show that the parent can’t care for their child because of this.
A child, a parent, and/or a guardian may have the right to a court appointed lawyer when someone files to end the guardianship. See The right to a court-appointed lawyer in a guardianship case. Also see How do I ask for a lawyer in a case to change or end guardianship of a minor?
You don’t have to pay the court to file the Petition.
But you may need to pay to “serve” someone. The price to serve someone through a sheriff or constable is different in each county. It can range from $35.00 to $55.00 per person. If you can’t afford that, file an Affidavit of Indigency to ask the court to cover the cost for you.
A Court Service Center can help you fill out the right paperwork.
The Court Service Centers have in-person and virtual times that they can meet with you to help fill out paperwork. But the Court Service Center can’t 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 at every court location. Check if 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 get help from this program.
In general, the court says that a guardianship case should take approximately 8 months from start to finish. But, it can take longer. It depends on things like if the guardians don’t agree about ending the guardianship or if the Department of Children and Families (DCF) has an open case with you.
Massachusetts law says that a parent needs to 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.
What does being a “fit” parent mean?
A fit parent is someone who can 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. Then the court can appoint another person to care for the child instead.
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 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 fix the problems that made the court create the guardianship.
Some examples of good changes that may show a parent is fit are:
- Finishing treatment for substance use disorder.
- Having stable housing.
- Having consistent income. This can 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).
- Getting custody of other children back and you can show you are doing a good job caring for them.
If the guardian doesn’t want to give up custody, they will try to show the court that you are still unfit. After you show the court that there has been good changes in your life, the guardian has to show the court that you are still “unfit.” See Guardianship of Kelvin. The guardian will probably bring up bad things about you. They will bring up the reasons why the guardianship was needed in the first place.
If the guardian can’t show that you are unfit, the court should end the guardianship. The court won’t 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 needs to show the court that a parent is not stable and can’t 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 in an abusive relationship with their partner.
- The parent has open criminal charges.
A parent may still be fit even if one of these things is true. A guardian needs to show that the parent can’t care for their child because of this.
For Example
A parent has substance use disorder that is not treated. They are living with an abusive partner. A guardian might say that these factors could expose the child to abuse or neglect. So, the guardian could show that these things keep the parent from being able to care for their child. The court may find that the parent is unfit.
A child, a parent, and/or a guardian may have the right to a court appointed lawyer when someone files to end the guardianship. See The right to a court-appointed lawyer in a guardianship case. Also see How do I ask for a lawyer in a case to change or end guardianship of a minor?
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.