Guardianship & Non-Parental Custody
Guardianship & Non-Parental Custody
Someone other than a child’s legal parent can obtain legal decision-making authority or physical custody of the child under specific circumstances. For a non-parent to secure legal custody, there are four prerequisites that must be established, a process often pursued by family members such as grandparents or stepparents. To establish guardianship, written consent from both legal parents is generally required.
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Guardianship and non-parental custody are two common ways to establish legal authority over a child. While these legal arrangements can also involve incapacitated adults or individuals with developmental disabilities, this discussion focuses on cases concerning children and minors in family law in Phoenix, AZ.
Guardianship: What, Who, How and Why
Legal guardianship in Arizona occurs when the Court grants an individual or individuals sole authority and responsibility over personal decisions involving a child. The appointed guardian assumes responsibility as a caregiver, sometimes referred to as a “ward.” This process is often sought by relatives such as grandparents who are looking to expand their legal rights or stepparents seeking guardianship.
For children under the age of 14, the Court determines the appropriate guardian based on what is in the best interest of the child. Minors over the age of 14, on the other hand, can nominate their own guardian, subject to Court approval. Any individual, or, in special cases, an organization, may serve as a guardian. However, they must pass a thorough background check that examines factors such as prior legal guardianships or criminal history to ensure a safe and stable living situation for the child.
Guardianship can be established in two ways. The first is through a will, where a guardian is designated after the death of a parent. The second involves a nomination and a formal petition for guardianship filed with the Court, often by a party interested in the minor’s welfare. Written parental consent is crucial in most cases. If there is concern over whether the guardianship could be contested, non-parental custody may provide an alternative path to gaining authority for the care and education of the child.
Non-Parental Custody: Reasons and Conditions
Non-parental custody, while less common, is an option when certain criteria are met. At least one of the following conditions must be established for the Court to consider this arrangement in Arizona:
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One of the child’s legal parents has passed away or has been missing for at least three months.
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The legal parents are legally separated or in the process of divorce, separation, or annulment.
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The non-parent must also demonstrate that they stand “in loco parentis”—a role that closely mirrors a parent-child relationship. This includes providing critical care like making non-emergency medical decisions, supporting the child’s education, and maintaining a meaningful connection akin to traditional parental responsibilities.
The Court prioritizes the child’s welfare and presumes that remaining with their legal parents is ideal unless there is compelling evidence otherwise. For example, the non-parent must prove that granting them custody is in the best interest of the child, such as in cases of abuse, neglect, or an unfit living situation under the care of the legal parents.
Guardianship or conservatorship, while distinct, may also arise in cases involving incapacitated adults or individuals with a developmental disability. If circumstances change, guardians may also petition to terminate the guardianship, adjust a minor’s living condition, or seek further legal advice regarding their evolving responsibilities.
Navigating decisions involving guardianship, non-parental custody, or conservatorship requires expert guidance. The Simon Law Group of AZ is here to provide experienced legal support for these complex and life-changing processes
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To discuss matters of non-parental custody or legal guardianship in Arizona, Contact Our Firm to immediately receive an email from the widely respected Phoenix law firm, Simon Law Group of AZ. Or call 480-745-2450 to book a free initial consultation with a passionate and aggressive family attorney in Phoenix today.