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Normally, the parents of a child are automatically the natural guardians of that minor. If the parents have separated and disagree about who should be appointed guardian, then the court will make a decision based on which parent they believe is best qualified for that role. The courts do not favor mothers or fathers in this situation and assume going in that both parents are equally capable of being the guardian. The court will look at the family’s situation and individual dynamics and appoint one or both of the parents as guardian according to what’s in the child’s best interest.

When one parent has passed away, the other parent is automatically entitled to be the guardian of their child. It doesn’t matter if the child’s grandparents or other relatives think it would be better for the children to live in a two-parent home with them: their wishes have no bearing. The only way that grandparents or other relatives could get guardianship of a child when one parent has passed away is if they can prove that the surviving parent is an unfit guardian.

 

If both the parents of a child have passed away, the situation becomes more complicated. A guardian must be appointed by the court, and the court follows a “line of succession” in determining the right person. The first person who would become guardian would be anyone designated by the last surviving parent. This must be a formal designation in a will. If no guardian has been designated by the parents, or if that person refuses to take the responsibility, then the nearest adult in direct line of relationship to the minor would become the child’s guardian. If there are no relatives, or the relatives are unwilling or unfit, then a non-relative can be appointed. If there are two relatives who are equally close to the minor in relationship, and both want guardianship, then the court will decide based on what they believe is in the child’s best interest.

It’s always important to remember that the court has the authority to skip anyone in this list if the court believes that person is not qualified. A person is automatically prohibited from becoming a guardian if they are a minor, incapacitated, have certain conflicts of interest with the child and their estate, or if their conduct is “notoriously bad.” The court may also disallow someone from serving as a guardian if they believe they lack the experience, education, or character to properly manage things on the child’s behalf.

A guardian can also be appointed for a child when the parents are unfit to care for their children, whether one parent has passed and the remaining parent is unfit or both parents are unfit (which is rare). Guardianship can be temporary in this case until the parents are able to prove to the court that they are ready to resume their responsibilities. In some extreme cases, the parents’ rights can be permanently terminated by the court, however.

Basically, the guardian is required to make sure that the minor child has everything that they need to live, develop, and thrive. This would include the basics like a clean home, medication and healthcare, clothes and food, and an education. The guardian is also there to live with the child because they are not yet capable of living on their own. A guardian will also be required to inform the court about the health and other details of their ward on occasion.

It’s always wise to consult with a lawyer if you are preparing estate documents and need to appoint a guardian. There are many reasons that a lawyer can be helpful here beyond just assisting you with choosing a guardian, but when it comes to guardianship, the most valuable service that your lawyer can do will be to help you vet potential guardians to make sure they will be acceptable to the court and help you think through the kind of questions you need to ask. 

Of course, your guardian will need to qualify according to the rules listed above, but it’s also important to ask specific questions about whether a potential guardian is willing to help, whether they have the financial resources to take care of your child if necessary, and more. Your lawyer can help you think through these questions, which may also include questions about religious beliefs, political opinions, and thoughts on education and other issues that could affect whether you want a person to care for and raise your child.

There are some similarities between adoption and guardianship, and some guardians do eventually adopt the children in their care, particularly if the guardian is a relative. But the two are not identical. An adopted parent fully replaces the child’s parents. They have all the legal rights over the child as if the child had been born to them, and this continues permanently. They have the right to change the child’s name, and the child can inherit from them. Adoptive parents also become responsible for every aspect of a child’s life. A guardian is not the same as a parent, and their situation does not continue permanently. Most guardianships end when a child turns 18 unless a child is permanently disabled and needs perpetual care. The guardian cannot change the child’s name, and the child cannot inherit from a guardian.

In most adoption cases, the rights of the biological parent have been completely terminated (or the biological parents are dead). Guardians can be appointed in cases where the parents have temporarily lost custody of their child while they enter substance abuse rehabilitation, finish prison sentences, or otherwise get their lives together. Assuming the parents can turn things around, the court may give them back custody of their children. This would not happen if the children have been formally adopted.