There are 2 types of guardians for minors: temporary and permanent. A permanent guardianship lasts until the child turns 18 or until the court makes a different order.
In Massachusetts, the court can appoint a guardian for a child if:
- The child's parents have died or are incapacitated,
- The parents agree to it,
- The parents' parental rights were terminated,
- The parents signed a voluntary surrender of the child for adoption, or
- The court finds the parents “unavailable” or “unfit” to have custody.
Read the full law here: Massachusetts General Law, Chapter 190B, Section 5-204(a)
Under Massachusetts law, a parent is usually seen as the best person to care for a child. A guardian can’t be appointed just because another person would do a good job or a better job than the parent.
But if a parent is “unavailable” or “unfit” the court may appoint a guardian. Unavailable or unfit mean that a parent can’t fully care for the needs of their children because of a serious situation of some kind.
For a court to appoint a guardian when the parents don’t agree to it, the judge must decide that there is “clear and convincing evidence.” This means the court must have little or no doubt that a guardianship is necessary. The evidence must show that each parent who doesn’t agree to the guardianship is “unfit” to have custody of the child. The person who wants to be a guardian has to show that a parent is unavailable or unfit. See Petition of Robert Kauch.
“Unfit” means more than a parent not doing a good job. It means that the parent has “grievous shortcomings” or serious issues that put the child at risk. For more, see Adoption of Rhona.
Common factors that may make a judge decide a parent is unavailable or unfit include things like:
- Drug and/or alcohol use by a parent,
- Criminal history of a parent,
- Domestic violence in the home of the parent,
- Abuse or neglect of the child by the parent,
- A parent that can’t manage money,
- A parent’s homelessness,
- A parent that can’t provide economically for the child,
- The child’s health and educational needs are not being met.
The court can look at 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 look at the specific facts of each case. Then, the judge decides based on what they believe is in the best interests of the child. See Guardianship of Estelle.
Anyone who is interested in the welfare of the child can ask the court to appoint a guardian. This form is called a petition. In general, someone interested in the welfare of a child includes the parents of the child, a child who is at least 14 years old, a relative of the child, or a family friend.
The court can appoint any person who:
- is at least 18 years old,
- lives in the United States, and
- does not have a criminal record for crimes involving child abuse or neglect
to be the guardian of a child.
Is there anybody who the court won’t appoint as guardian?
The court won’t appoint an adult who is currently being investigated for child abuse or neglect. The court also looks at the guardian’s criminal record and court records for cases of abuse or neglect of a child.
If the child is over 14 years old, the court must look at who the child wants as their guardian.
But the court still decides if the person the child wants to be their guardian is a good fit. If the court decides that the person the child wants isn’t in the child’s best interests, the court appoints someone else as guardian.
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. You file paperwork by bringing it to the registry of the court where the case has been started. See “Where do I file my petition to appoint a guardian?” below.
A parent can choose a person to be a guardian for their child in case something happens to the parent. A parent 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. So can a legal guardian, foster parent, and anyone else who the court has said can make decisions for the child. This guided interview can help you fill out and download the form.
This is an important form. If you sign it you give up your right to be told about any required court hearings that have to do with the guardianship case for the child.
If a parent agrees to appoint a guardian, does the person they choose get any special preference?
Yes. A guardian that a parent chooses or that a previous guardian chooses is the first person the court looks at. The court still makes sure that there is no objection to this person from:
- the child if they are over 14 years old,
- the other parent if they still have their parental rights, or
- a person other than a parent who has had custody of the child or who has had the child living with them during the last 60 days.
In general, a person who wants to be the guardian of a child needs to complete and file the following forms in the Probate and Family Court:
- Petition for Appointment of Guardian of Minor
- Affidavit Disclosing Care and Custody
- Military Affidavit
- A fee waiver, called an Affidavit of Indigency (if eligible)
- Bond (which may be waived based on your income)*
- Verified Motion for Appointment of Temporary Guardian of a Minor
If the parents and/or the child if they are over 14 years old agree to the guardianship, you should also file the following:
- Parent's Notarized Waiver and Consent to Petition for Guardianship of Minor
- Minor's Notarized and Verified Consent or Nomination
You must also file a Certificate of Service. This is a sworn statement signed by the person who serves the papers. This is usually a sheriff.
Important: If there is an ongoing case in the Juvenile Court, you must use the Juvenile Court’s version of these forms. See Juvenile Court Department Guardianship Forms.
What is the bond?
To be appointed as guardian, the guardian must sign and file the bond. The bond is a promise to the court that the guardian will faithfully carry out the legal duties of a guardian.
A guardian may need a “surety” if the child has a lot of money or assets in their name. A surety is another person who also signs the bond. They are also responsible to make sure the guardian carries out their duties. But since the guardian doesn’t control assets or income for the child, the court usually decides a surety isn’t necessary.
Where do I file my petition to appoint a guardian?
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.
There is no cost to file the Petition to Appoint a Guardian.
For the Certificate of Service, there may be a cost. That cost varies from case to case. “Service” is when a sheriff gives the documents to the other people involved in your case. Ask the clerks at the courthouse. They should be able to tell you how much it costs. You can also review the court’s instructions: Petitioner’s Instructions for Notice in Guardianship of Minor Proceedings.
If you don’t know the address of the person who you need to serve, you may have to publish the notice in a newspaper. This type of service also has a cost.
What if I can't afford the fees?
If you can’t pay the bond or service fees, you can file a form called an Affidavit of indigency if you can't afford Massachusetts court costs. The form asks the court to have the state pay the cost for you.
The person asking for the guardianship of a minor has to give “notice” or give copies of their petition 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. See Petition for the Guardianship of a Minor - Instructions for Notice and Checklist for Notice in a Guardianship of a Minor.
Note
The checklist includes the spouse of the child if they are married. But since 2022, people under the age of 18 can’t get married in Massachusetts. So a child’s spouse no longer needs to be served.
Any of the following parties can object (disagree):
- The child if they are over 14 years old,
- The other parent, as long as they still have their parental rights, and
- A person other than a parent who has had custody of the minor or who has had the minor living with them during the last 60 days.
To object to the petition, file an Appearance and Objection form. You need to write an “affidavit” or personal statement telling the court the specific reasons that you object. This guided interview can help you fill out and download the forms you need.
The child has the right to have a lawyer represent them. The court can appoint the lawyer, or one of the parties can ask for a lawyer to be appointed for the child.
Also, low-income parents have the right to a court-appointed lawyer.
A person who wants to be a guardian does not have the right to a court-appointed lawyer.
For more information, see The right to a court-appointed lawyer in a guardianship case.
It ends when the child turns 18, unless someone petitions to end it sooner. For more information, see How to end guardianship of a child.
In Massachusetts, the court can appoint a guardian for a child if:
- The child's parents have died or are incapacitated,
- The parents agree to it,
- The parents' parental rights were terminated,
- The parents signed a voluntary surrender of the child for adoption, or
- The court finds the parents “unavailable” or “unfit” to have custody.
Read the full law here: Massachusetts General Law, Chapter 190B, Section 5-204(a)
Under Massachusetts law, a parent is usually seen as the best person to care for a child. A guardian can’t be appointed just because another person would do a good job or a better job than the parent.
But if a parent is “unavailable” or “unfit” the court may appoint a guardian. Unavailable or unfit mean that a parent can’t fully care for the needs of their children because of a serious situation of some kind.
For a court to appoint a guardian when the parents don’t agree to it, the judge must decide that there is “clear and convincing evidence.” This means the court must have little or no doubt that a guardianship is necessary. The evidence must show that each parent who doesn’t agree to the guardianship is “unfit” to have custody of the child. The person who wants to be a guardian has to show that a parent is unavailable or unfit. See Petition of Robert Kauch.
“Unfit” means more than a parent not doing a good job. It means that the parent has “grievous shortcomings” or serious issues that put the child at risk. For more, see Adoption of Rhona.
Common factors that may make a judge decide a parent is unavailable or unfit include things like:
- Drug and/or alcohol use by a parent,
- Criminal history of a parent,
- Domestic violence in the home of the parent,
- Abuse or neglect of the child by the parent,
- A parent that can’t manage money,
- A parent’s homelessness,
- A parent that can’t provide economically for the child,
- The child’s health and educational needs are not being met.
The court can look at 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 look at the specific facts of each case. Then, the judge decides based on what they believe is in the best interests of the child. See Guardianship of Estelle.
Anyone who is interested in the welfare of the child can ask the court to appoint a guardian. This form is called a petition. In general, someone interested in the welfare of a child includes the parents of the child, a child who is at least 14 years old, a relative of the child, or a family friend.
The court can appoint any person who:
- is at least 18 years old,
- lives in the United States, and
- does not have a criminal record for crimes involving child abuse or neglect
to be the guardian of a child.
Is there anybody who the court won’t appoint as guardian?
The court won’t appoint an adult who is currently being investigated for child abuse or neglect. The court also looks at the guardian’s criminal record and court records for cases of abuse or neglect of a child.
If the child is over 14 years old, the court must look at who the child wants as their guardian.
But the court still decides if the person the child wants to be their guardian is a good fit. If the court decides that the person the child wants isn’t in the child’s best interests, the court appoints someone else as guardian.
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. You file paperwork by bringing it to the registry of the court where the case has been started. See “Where do I file my petition to appoint a guardian?” below.
A parent can choose a person to be a guardian for their child in case something happens to the parent. A parent 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. So can a legal guardian, foster parent, and anyone else who the court has said can make decisions for the child. This guided interview can help you fill out and download the form.
This is an important form. If you sign it you give up your right to be told about any required court hearings that have to do with the guardianship case for the child.
If a parent agrees to appoint a guardian, does the person they choose get any special preference?
Yes. A guardian that a parent chooses or that a previous guardian chooses is the first person the court looks at. The court still makes sure that there is no objection to this person from:
- the child if they are over 14 years old,
- the other parent if they still have their parental rights, or
- a person other than a parent who has had custody of the child or who has had the child living with them during the last 60 days.
In general, a person who wants to be the guardian of a child needs to complete and file the following forms in the Probate and Family Court:
- Petition for Appointment of Guardian of Minor
- Affidavit Disclosing Care and Custody
- Military Affidavit
- A fee waiver, called an Affidavit of Indigency (if eligible)
- Bond (which may be waived based on your income)*
- Verified Motion for Appointment of Temporary Guardian of a Minor
If the parents and/or the child if they are over 14 years old agree to the guardianship, you should also file the following:
- Parent's Notarized Waiver and Consent to Petition for Guardianship of Minor
- Minor's Notarized and Verified Consent or Nomination
You must also file a Certificate of Service. This is a sworn statement signed by the person who serves the papers. This is usually a sheriff.
Important: If there is an ongoing case in the Juvenile Court, you must use the Juvenile Court’s version of these forms. See Juvenile Court Department Guardianship Forms.
What is the bond?
To be appointed as guardian, the guardian must sign and file the bond. The bond is a promise to the court that the guardian will faithfully carry out the legal duties of a guardian.
A guardian may need a “surety” if the child has a lot of money or assets in their name. A surety is another person who also signs the bond. They are also responsible to make sure the guardian carries out their duties. But since the guardian doesn’t control assets or income for the child, the court usually decides a surety isn’t necessary.
Where do I file my petition to appoint a guardian?
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.
There is no cost to file the Petition to Appoint a Guardian.
For the Certificate of Service, there may be a cost. That cost varies from case to case. “Service” is when a sheriff gives the documents to the other people involved in your case. Ask the clerks at the courthouse. They should be able to tell you how much it costs. You can also review the court’s instructions: Petitioner’s Instructions for Notice in Guardianship of Minor Proceedings.
If you don’t know the address of the person who you need to serve, you may have to publish the notice in a newspaper. This type of service also has a cost.
What if I can't afford the fees?
If you can’t pay the bond or service fees, you can file a form called an Affidavit of indigency if you can't afford Massachusetts court costs. The form asks the court to have the state pay the cost for you.
The person asking for the guardianship of a minor has to give “notice” or give copies of their petition 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. See Petition for the Guardianship of a Minor - Instructions for Notice and Checklist for Notice in a Guardianship of a Minor.
Note
The checklist includes the spouse of the child if they are married. But since 2022, people under the age of 18 can’t get married in Massachusetts. So a child’s spouse no longer needs to be served.
Any of the following parties can object (disagree):
- The child if they are over 14 years old,
- The other parent, as long as they still have their parental rights, and
- A person other than a parent who has had custody of the minor or who has had the minor living with them during the last 60 days.
To object to the petition, file an Appearance and Objection form. You need to write an “affidavit” or personal statement telling the court the specific reasons that you object. This guided interview can help you fill out and download the forms you need.
The child has the right to have a lawyer represent them. The court can appoint the lawyer, or one of the parties can ask for a lawyer to be appointed for the child.
Also, low-income parents have the right to a court-appointed lawyer.
A person who wants to be a guardian does not have the right to a court-appointed lawyer.
For more information, see The right to a court-appointed lawyer in a guardianship case.
It ends when the child turns 18, unless someone petitions to end it sooner. For more information, see How to end guardianship of a child.
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