In Guardianships handled by the Probate Court, the child lives with the person who is the guardian. That person, typically a family member, decides that a formal court guardianship is necessary and petitions the Court to become the guardian. The parents of the child are unable to care for the child for a variety of reasons: a serious illness, military duty in another country, drug or alcohol addiction, incarceration, or even death. Unlike Juvenile Dependency Court, the Probate Court does not terminate parental rights. The parents may, however, request visitation or file a petition for the Court to terminate the guardianship. The guardian also can file a petition for termination of a probate guardianship and so can a child if he or she is 12 years old or over. The Judge will then decide, after an investigation, whether it is in the best interests of the child to continue the guardianship or to terminate it.
When a petition for probate guardianship is filed, a court investigator goes out to the home of the child to see why the guardianship is needed. The investigator interviews everyone in the situation, including the parents if they are available. Many times, parents think a guardianship is the best thing for their child, at least for a while. The Probate Court staff also checks to see if the guardian or any other adults in the household has a criminal background or has been involved in child abuse or neglect. The investigator then writes a confidential report for the Judge and gives a copy to the attorney who is representing the proposed guardian. The parents or other relatives receive a copy of the report if they file objections to the proposed guardianship. The Judge may decide to appoint an attorney to represent the child – especially if there is a lot of conflict among the adults.
A probate guardianship of the person may be appointed so that a guardian can take care of the physical, emotional, and educational needs of a child. A probate guardian of estate may be established when a child has assets, will inherit assets, or is the beneficiary of a deceased parent's or grandparent’s insurance policy. Most guardianships are of the person only. In some cases, there is a guardianship of both the person and the estate.
Even after a guardian has been appointed, the Probate Court continues to be concerned about the child. The Probate Court sends out trained and supervised volunteers periodically to see how the child is doing and to determine if the guardian needs help. When there is guardianship of the estate, the guardian must submit regular accountings to the Court.
All children need care and attention. Fortunately, there are people in our community who are willing to step forward and serve as guardians when parents are not available. The Probate Court is part of this process by appointing guardians for children, by helping make certain that children in guardianship are protected, and by helping guardians get the information they need.