Guardianship for Children in North Carolina

Understanding Legal Guardianship for Children

Children rely on adults to provide them with a place to live, food, clothing, and many other necessities. When the needs of children are not being met by their parents, a legal guardian is sometimes an option.

The guardianship process can be complicated and requires completion of many forms, court hearings, and periodic reporting to the court. With the help of an experienced North Carolina guardianship attorney, you can navigate the court system and become the guardian of a loved one who is in need.

How to Become a Child’s Guardian

Although a relative is the preferred guardian for a child, a legal guardian may also be a friend of the family, corporation, or public agency, such as the North Carolina Department of Health and Human Services. A person with an extensive criminal background may not become the guardian of a minor.

In order to become a guardian, you must complete an application with the Clerk of the North Carolina Superior Court in the county of the child’s residence. There are also court costs and fees to be paid. You must indicate which type of guardianship you are seeking:

• Guardian of the Person – This type of guardian makes decisions about the child’s personal care and well-being, such as where they will live and medical decisions. A guardian of the person does not handle the child’s money.
• Guardian of the Estate – This type of guardian handles the child’s finances only, but does not make decisions about the child’s well-being.
• General Guardian – This type of guardian is of the person and estate, making decisions about the child’s personal well-being and finances.

Once the appropriate documents are filed, the Clerk will set a hearing and will invite all interested parties to attend. Minor children are typically appointed a guardian ad litem who will represent their interests during the proceedings and make recommendations to the court.

A child’s parents may also be involved in the hearings if they are still involved in the child’s life. Unlike adoption, parental rights do not have to be eliminated during a guardianship.

Guardianship vs Child Custody

The key difference between being a legal guardian and having legal custody is in regard to the child’s parentage. Custody describes a biological parent caring for a child, but guardianship is given to someone other than a biological parent. In some cases, a child may even be under the guardianship of one person while in custody of a parent.

Guardianship vs Adoption

Adoption is the legal process by which an adult becomes the permanent, legal parent of a child by severing the previous legal parent-child relationship. Guardianship, on the other hand, is when a person is responsible for the care and well-being of a child, but the child’s parents maintain their rights. 

Temporary vs Permanent Guardianship of a Child

Temporary guardianship, as the name suggests, is not meant to last forever. It’s intended to meet a specific goal and usually comes with a time limit. Permanent guardianship creates a more stable, long-term environment by giving the guardian the same authority as a parent. However, the legal relationship expires when the child becomes an adult.

A temporary guardianship can sometimes change to a permanent guardianship. In most cases, a temporary guardian can request full guardianship if the parents are still unable to care for the child and likely won’t be in the foreseeable future.

When Does a Child Need a Legal Guardian?

Guardianship laws may vary, but a judge usually transfer guardianship of a child to protect the best interests of a child. Common examples include:

• A single parent was hospitalized
• Both parents were killed
• The child needed life-saving medical care but the parents refused
• The parent abandoned the child by leaving
• The Parents are temporarily unable to care for the child

Responsibilities of a Child’s Guardian

A guardian of a minor is responsible for the actual needs of the child. The guardian may not make decisions that are not in the child’s best interests. Guardians are responsible for making decisions including, but not limited to:

• Estate – When a guardian is responsible for the estate of a child, they manage the child’s finances. This includes property and investments. A guardian is not responsible for the debts of an estate and may be reimbursed for their expenses related to the estate.
• Health – A guardian of the person or general guardian is responsible for the medical and psychological needs of a child. They may authorize medical care, but they are not responsible for any harm that occurs as a result of reasonable medical care.
• Home – A guardian of the person or general guardian is responsible for determining where a child lives. A guardian should also ensure the child is safe and comfortable in that home, including food, clothing, shelter, and other matters.
• Education – A guardian of the person or general guardian is responsible for ensuring a child receives proper education. Guardians may also give permission to take part in school-related activities.
• Legal Services – A guardian should ensure children have legal services that are necessary for their estate or person. This applies to taxes, personal injury cases, and any other legal issues.

When a Guardianship is Terminated

All guardianships listed above end when the minor turns 18. A guardianship will also end if the guardian resigns. The court can remove a guardian if the guardian is not making sounds decisions on behalf of the minor, is not taking proper care of the minor, or is mismanaging the minor’s assets. The court will also take action against the guardian in certain situations. For example, if the guardian can be removed or otherwise reprimanded if they:

• Is convicted of a felony
• Does not meet the qualifications to serve as guardian
• Is adjudicated incompetent

Ending a guardianship must be handled correctly. Finding an experienced North Carolina family law attorney to help you take care of the process is essential to protect your loved ones.