Report Family-Friendly Courts: State Legislatures’ Role in Improving Minor Guardianship Proceedings

Introduction 

A child losing both parents in a car accident invokes thoughts of a family friend becoming the child’s legally recognized permanent guardian. A single mom in the military being deployed may result in a relative taking temporary legal guardianship until the mom returns. Children suffering abuse might be sent to live with grandparents who become permanent legal guardians of the children after parental rights are terminated. In each case, the subsequent legal relationship is a minor guardianship.  

Minor guardianships are intended to provide safety, security and stability for children when their parents are unavailable, unable or unwilling to fulfill their parental responsibilities. Depending on state laws, they can be established at the behest of the parent(s), other family members, concerned individuals or the state.  

These legal relationships differ from informal non-parent caregiver relationships in that they are court appointed and legally binding. In addition, minor guardianship is not the same as child custody. Minor guardianship and the legal rights and responsibilities conveyed to a guardian are not a direct equivalent to parental rights. Nor does the appointment of a guardian necessarily mean that parents must relinquish their parental rights.  

How, when and whether minor guardianships are established depends heavily on state law, since states generally have jurisdiction over family law issues. To help legislators and legislative staff better understand minor guardianships and the intersection between state legislatures and civil courts on this topic, NCSL analyzed relevant statutes from six states: Georgia, Indiana, Michigan, Nevada, Tennessee and Washington. These states were chosen to provide a geographically, demographically and politically diverse sample of states.  

This report introduces the concept of minor guardianship and how they are shaped by legislatures through statute. It also outlines opportunities for state legislatures to make minor guardianship legal proceedings more family friendly before, during and after court involvement.   

This report is part of an NCSL series on opportunities and challenges for state legislatures to make civil court systems more family friendly.  

State Legislatures’ Role in Improving Minor Guardianship Proceedings 

Legislatures have the ability and authority to influence how families interact with state civil courts. Civil courts provide a venue for resolving non-criminal legal matters, including establishing minor guardianships. Through judicial process and decision-making, these courts can directly or indirectly influence the well-being of children and families. In a recent brief, NCSL explored state legislatures’ role in establishing civil court processes and ways to make civil courts more family friendly. 

The right and responsibility to make decisions about and provide for a minor’s care and upbringing rest with the child’s biological or adoptive parents, sometimes called natural guardians. When natural guardians are unable or unwilling to fulfill their parental obligations, a legally recognized alternative may be in the best interest of the child. In such cases, state civil courts can establish guardianships that appoint another adult or adults to serve as the child’s guardian(s).  

Minor guardianship might be needed or beneficial in a variety of circumstances. Some common reasons are death or absence of parents, severe child maltreatment and parental illness (including addiction) or incapacitation. States determine their own definitions of child maltreatment and grounds for when a child should be removed from their parents’ care.   

Data is sparse on how many children have or need an appointed legal guardian, in part because many circumstances could necessitate these legal relationships, and they are not tracked comprehensively. As of 2021, more than 140,000 children in the U.S. had lost their primary or secondary caregiver to COVID-19 which raised questions about what happens when children are orphaned by the loss of their primary caregiver(s) during major crises. Death of a parent can also trigger minor guardianship proceedings as part of the court's role in settling estate disputes following a death. In some states, parents have the option to plan for such an event and name a successor guardian. 

Other circumstances might leave a child without an adult who is legally responsible for decisions about their care and upbringing. A child’s parents might be absent or unavailable due to military deployment, severe illness or incarceration. In these cases, parents may choose to initiate the appointment of a guardian on a temporary or permanent basis.  

Minor guardianship can also be an option for permanency in child welfare cases when a child can’t safely be reunited with their parents and adoption isn’t feasible. In these cases, establishment of a minor guardianship may transfer legal custody to kinship caregivers rather than the state. Minor guardianship processes can also be initiated by other adults, or the child in some cases, by filing a petition with a civil court to appoint a legal guardian when concerns about the child’s welfare exist.  

Minor Guardianship Laws Across States 

Through statutes on minor guardianship, legislatures provide high-level guidance to courts about the circumstances for which a minor guardianship can be sought, civil processes related to them, what happens when they are in place and how they can be terminated. Each of these aspects shape how families that may need or want a minor guardianship are impacted before a minor guardianship is sought, during related civil processes and after a guardianship is established.  

Minor guardianship statutes are often found in multiple parts of state code which can make it difficult for families and professionals alike to understand the full legal landscape of minor guardianships. Below are the portions of state code NCSL reviewed in the six sample states relevant to caregiving arrangements that could impact minor guardianships.  

Terminology and Definitions

States use a variety of terms to refer to minor guardianship arrangements, including permanent guardian, limited guardian, successor guardian, temporary guardian, emergency custodian, kinship caregiver, conservator and standby guardian. All six states reviewed use multiple terms for minor guardianship in statute, each associated with specific conditions in which they may be used, and varying levels of rights and responsibilities conferred to the guardian. Across the six states, NCSL identified three general categories of minor caregiving relationships relevant to minor guardianship. Each category often includes several terms defined in statute.  

Categories of Minor Caregiving Relationships 

• Informal (e.g., de facto custodian)—limited or no legal caregiving rights or responsibilities; may confer additional consideration in custody, child in need of aid or paternity/guardian proceedings, if addressed in statute at all. 
• Temporary or non-permanent guardianship (e.g., temporary guardian, emergency custodian, limited guardian, power of caregiving attorney)—legal caregiving rights and responsibilities are established for a time- or circumstance-limited reason.  
• Long-term or permanent guardianship (e.g., permanent guardian, legal guardian, successor guardian)—legal caregiving rights and responsibilities most like parental rights and responsibilities; often intended to last until a minor reaches the age of majority.   

States’ definitions of terms used in statute for minor caregiving and minor guardianship arrangements impact how and when families can seek a minor guardianship. For families facing circumstances where a minor guardianship may be helpful, they need to know what kinds of guardianship may be applicable to their situation and how to get information about the process before they come into contact with civil court systems. The table below shares examples of terminology used in statute, the category of caregiving relationships and context for when these terms may apply.   

Procedural Elements  

All states have statutes establishing one or more processes by which minor guardianship cases are brought before the court. These statutes shape how families enter and move through civil court proceedings.  

Jurisdiction for establishing minor guardianships varies by state and type of guardianship. In Washington, minor guardianship cases go through probate court or juvenile court depending on the title and chapter of statutes under which legal proceedings are initiated. In Georgia, jurisdiction for minor guardianship cases may be held with juvenile court, probate court or superior court and in certain circumstances jurisdiction can be transferred. In other states, including Michigan and Tennessee, case jurisdiction may depend on the child’s county of residence, such as established in Michigan. 

Looking at statutes in the six sample states, NCSL identified eight common procedural requirements shaping how minor guardianship cases move through civil courts. 

With all these variables, families navigating minor guardianship processes may find it difficult to know which procedures apply or which court has jurisdiction. 

Family Involvement with Civil Courts 

Statutes address how minors, their parents and prospective guardians are involved with minor guardianship arrangements and processes. In the six sample states, statutes cover how parties are or can be involved during civil court proceedings and after minor guardianship is established.  

While all six states afford any affected parties—minors, parents or prospective guardians—a right to counsel in at least some types of minor guardianship proceedings, generally only minors have any statutory right to court-appointed legal counsel. The right to counsel may depend on which court has jurisdiction. For example, Georgia, Indiana, Michigan, Nevada and Tennessee address right to counsel in proceedings involving minor guardianship in cases arising out of child welfare, delinquency or emancipation concerns. Washington statute allows for the court to appoint an attorney for a minor in guardianship proceedings at the court’s discretion and requires the court to appoint an attorney for the parents in certain circumstances such as the parent(s) objecting to the appointment of a guardian. None of the six states has statutes that explicitly address a right to counsel for minor guardianship proceedings under probate courts. Michigan statute grants probate courts the discretion to appoint a guardian ad litem or attorney for a minor but does not establish a right to counsel.   

Parents 

States provide various ways for parents to initiate or plan for minor guardianship should the need arise. From the six sample states, NCSL identified four options.  

• Delegating caregiving authority power of attorney: Through this mechanism a legal relationship is established between a minor and an adult of the parent’s or parents’ choosing. This option does not require court appointment of a guardian, court hearings or a lengthy legal process. Requirements for a simplified civil process are generally established in statute and may be as basic as filing a notarized document with the court.  
• Short-term, temporary guardianships: This type of minor guardianship can be initiated by parents in certain situations, such as a parent’s deployment, serious illness or imminent incarceration. Parents generally retain the right to end the guardianship. In some states, this requires a petition to the court. Once approved, they can resume their parental rights and responsibilities.  
• Naming a minor guardian in a parent’s will: Parents can use this mechanism to plan for guardianship in case of their death. States use many approaches to account for the parent’s stated wishes regarding a named guardian: 
  • Allow the named guardian to be appointed upon probate of the parents’ will provided certain conditions are met, such as no surviving parent or the court deciding the named guardian is not in the child’s best interest.  
  • Require the named guardian to file a petition with the court to be appointed as a guardian.  
  • Require the named guardian to file an acceptance of the guardianship with the court to formalize the arrangement after a parent’s death.  
  • Require the court to determine the child’s best interest and give a named guardian priority preference in determining who to appoint as guardian. 
• Filing a petition for minor guardianship: Parents in all six states can file a petition for the court to appoint a guardian for their minor child through the same process as other interested and eligible individuals or agencies.   

Statutes are also used in some states to address whether and under what circumstances parents maintain full or limited parental rights while a guardianship or similar legal relationship is in place. This tends to vary by type of minor guardianship, particularly when regarding parent-initiated guardianships.  

Georgia, Indiana, Michigan, Nevada and Washington have statutes that address circumstances when parents may be required to provide financial compensation or child support to an appointed guardian. Tennessee does not have such a provision; however, its statutes grant courts broad discretion to set requirements related to minor guardianship on a case-by-case basis.  

Statute in all six sample states address procedures for parents to initiate the termination of a guardianship arrangement when the parent intends to resume responsibility for the care and well-being of their child.  

Minors 

Statutes in the six sample states also address what role a minor may have in guardianship processes before civil court involvement, during civil court processes and after guardianship has been established. While these vary by state, they generally include the following: 

• Whether and how a minor may initiate the process of establishing a guardianship. 
• Whether minors have a right to an appointed attorney in guardianship proceedings. 
• Whether the court must or may consider the minor’s wishes about the appointment of a guardian or who is appointed as their guardian. 
• Whether, when and how and a minor can petition the court to terminate or modify the guardianship. 
• Whether a guardianship automatically ends when the minor reaches the age of majority or requires action by either the minor or guardian. 

Some statutes also address requirements or protections for a minor’s well-being, property and financial resources once guardianship is in place. Strategies states use to do this include: 

• Requiring a minor’s assets to be used for the benefit of the minor.  
• Requiring guardians to act in the best interest of a minor ward.  
• Granting courts the discretion to give additional directions to a guardian that may be appropriate for the care of a minor or the minor’s property. 
• Requiring a guardian to periodically report to the court about the minor’s status.  
• Requiring a guardian to provide the court with an accounting of the minor’s assets at the end of a guardianship.  

Prospective and Appointed Guardians 

Prospective and appointed guardians, in addition to having their rights and responsibilities as guardians generally defined through statute, are the subject of statutes in other ways too. In particular, prospective guardians often initiate minor guardianship proceedings when a child’s parents are already unavailable or incapacitated.  

• Establish when and how prospective guardians may file a petition for minor guardianship. Prospective guardians in some states can file a petition for minor guardianship, thereby initiating civil legal proceedings. Such filings may require information such as why a guardianship is necessary and how the prospective guardian is related to the minor.  
• Address how an appointed guardian will secure the financial means to care for the minor. Financial means may include earned income, child support from the minor’s parents or through public assistance programs.  
• Set requirements related to oversight and accountability while guardianship is in place. Some states grant courts the authority to establish reporting or accountability requirements on a case-by-case basis. Others require guardians to file periodic reports or keep the court apprised of certain things related to the minor such as changes in residence or new health conditions.  
• Establish processes for an appointed guardian to resign their appointment. This may be necessary, for example, if a guardian becomes ill or is unable to fulfill their responsibilities. This could also allow guardians to terminate guardianships that are no longer necessary. 

Summary  

Families can benefit from minor guardianship by providing safe and stable care for a child through a legal relationship with another adult when the child’s parents aren’t able to fill that role. Many families currently using informal care arrangements may be better served with a minor guardianship but do not seek them, in part because the process is so complex.   

While there is no single right way to structure minor guardianship policy or civil court processes, state legislatures have a role to play in making minor guardianship more family friendly before families become involved with civil courts, during related civil court processes and after minor guardianships are established. 

Before Court Involvement 

Statutes shape why, when and how families become involved with civil courts for minor guardianship.  The definitions of and criteria for the many types of minor guardianship can determine whether families need to become involved with civil courts. Statutes establishing mechanisms that grant families opportunities to plan for possible crises or initiate a necessary minor guardianship without a lengthy court involvement can also shape family experiences.  

Three Principles to Consider: 

1. Alternative Processes—Minimize the need for lengthy civil court processes by creating alternatives for families to initiate minor guardianship arrangements with simplified court involvement (e.g., notifying the court rather than asking the court to rule on an arrangement). 
2. Proactive Family Involvement—Maximize opportunities for parents to plan for circumstances that could require a guardian for their child (e.g., caregiving power of attorney, standby guardianship). 
3. Simplicity—Simplify, clarify and define terminology and processes to help families, including prospective guardians, understand their options to minimize court involvement. 

During Court Involvement 

Often the most variation and complexity can be found in statutes governing procedural elements of court proceedings. Research on how many families experience minor guardianship civil court proceedings is limited; however, it’s clear from statutes in the six sample states, that it’s likely to be a complicated experience against a backdrop of stressful circumstances, such as the death or illness of a parent, parental abandonment or a parent’s separation due to military deployment. State legislatures, through the many procedural elements addressed in statutes, can make minor guardianship proceedings more family friendly and reduce adverse impacts on parents, children and potential guardians.  

Three Principles to Consider: 

1. Simplicity—Simplify procedural elements that shape family experiences while involved with civil courts (e.g., increasing consistency across types of minor guardianship or jurisdictions). 
2. Collaboration—Foster relationships between the state legislature and courts to enhance families’ ability to navigate civil court processes through complementary efforts (e.g., establishing a task force comprised of judicial officers and state legislators).  
3. Support—Help families navigate minor guardianship processes (e.g., provide legal counsel or peer-navigator programs and require plain-language communication). 

After Court Involvement 

In contrast to adoptions, minor guardianships established through civil court processes are not permanently established legal relationships. They generally end once a child has reached the age of majority. With minor guardianships, the parents, if still living, and the state both have an interest in the minor’s well-being. This necessitates some level of ongoing court or state oversight of the guardianship. Additionally, guardians are not always solely financially responsible for the minor’s care, meaning guardians may need to interact with the parents, state or court to receive financial support.  

While many of the details of what happens once a minor guardianship is in place are left to the discretion of the court, state legislatures can broadly address in statute the nature or degree of oversight to ensure guardianships function as intended while minimizing the burden on families.  

Three Principles to Consider: 

1. Simplicity—Maximize simplicity and clarity of reporting requirements for guardians.  
2. Child Well-Being—Emphasize child well-being and minimize risk of exploitation by ensuring adequate safeguards are in place. 
3. Family-Friendly Terminations—Establish clear and simple processes shaping how, when and why minor guardianships conclude (e.g., child reaches the age of majority, parent wishes to resume caregiving responsibilities, guardian is no longer able to continue in the role).