If you are a grandparent, aunt, uncle or other concerned person with a relationship to a child in Texas you may have pondered how you could become a more permanent part of that child’s life. Recently I had a grandmother come in to speak to me in a free of charge consultation at our office and asked how she could go about becoming a guardian of her granddaughter. Her motivation was that her grandchild was going to be starting school for the first time in the fall and she wanted to put the child on her health insurance. Her health insurance provider told her that she would need to become a legal guardian before being able to do so. With that, this concerned grandma met with me to learn more about the process.
What does the law say in Texas about parents and legal guardianships?
Under Texas law, the biological or adoptive parents of a child are the guardians and conservators of that child. This means that the parents, as guardians, are responsible for the care, control, upbringing, and custody of that child until he or she turns 18.
The question that we will be looking at today is what happens if you know of a child whose guardians are not able to fulfill those obligations that the State of Texas sets forth? Are you able to intercede and help the child? Thankfully you are, and becoming the legal guardian is one such option for you.
What does being a legal guardian actually mean?
You may have heard the term “guardian” be used before or even used it yourself in conversation with friends and family. I think most of us generally understand what a guardian means but for those who don’t, a guardian is an adult person who takes over the day to day care and decision making for a child under the age of 18. To become a guardian, he or she would need to step into the shoes of a biological parent in order to be able to do so.
What are you able to do as a guardian, you may be asking? Guardians in Texas can request and accept medical treatment on behalf of their child and can enroll the child in public school. These are the two most commonly utilized rights that a parent has and a guardian would have them as well. As a general statement, you as the guardian must also provide for the general care and upbringing of your child. Think of things like food, shelter, clothing, nurturing, etc. as general care and upbringing means.
What does being a legal guardian not include as far as responsibilities for you?
As opposed to a conservator of a child, a legal guardian owes no financial responsibility to a child. Both of the child’s parents would remain responsible for the child’s financial well-being. I couldn’t write these past two sentences without telling you, however, that as a guardian you would likely find yourself in a position where you would be providing some degree of financial assistance even if it were informal. F
The process to actually become a legal guardian of a child in Texas
Before you go through with the steps of attempting to become a legal guardian to a child you should consider whether or not to hire an attorney. An attorney knows the law, the processes involved and can give you beneficial advice throughout the process that can help you. Spending your own time and money to gain a guardianship over a child is an option as well, but what we find happens a lot is that you run into various roadblocks that slow you down and may even prevent you from accomplishing your goals. Hiring an attorney is a way to help prevent delays and problems in your guardianship application process.
The easiest path towards your becoming the guardian to a child in your life is to have the parents of the child grant you guardianship. They can provide you with a written statement wherein they state that they have vested you with all of the rights, duties and privileges of a guardian over their child.
In the alternative, if you are not in a position where both parents are willing to do so then you would need to seek a court order that grants you a guardianship. The first step in that process is to file a petition to name you as a guardian and to then serve notice of it to both of the child’s parents. From there, the parents would respond with Answers and the legal process begins. Certainly if you are having to file a lawsuit to get this done for yourself it is actually required that you hire an attorney.
Why does the law require that you have to hire an attorney when you don’t have to in family law cases like divorces and child custody matters? The process of becoming the guardian of a child is complicated and there are court appearances (at least one) that will need to be attended to in order to accomplish your goals. The other thing to keep in mind is that a guardianship case is not a family law matter but one that is governed by the Probate Code and its courts in Texas. Your case would need to be filed in the Probate court in the county where the child lives.
Presenting evidence and making a case for yourself to become the guardian of a child
The standard that a guardianship proceeding would utilize is the same as a child custody case. Any orders made in the case, any decisions that are reached all need to be in the best interests of the child. Your petition is the place where you begin to make your case. You should talk to your attorney about the specific reasons why you need to become a guardian of this child. If the situation is an emergency then that should be stated as well.
Once you file the petition the court will assign your case to a judge and will allow you to provide notice of the lawsuit by serving the child’s parents. You can set the case for a hearing far enough out to serve the parents with your petition and a notice of hearing all at the same time. This can save money, time and effort for you and your attorney.
Final stop: The courthouse
There is a test that you have to take in order to become a legal guardian to a child in Texas. The Guardianship Certification Board handles these tests and you will have to fill out paperwork, submit fingerprints and undergo a background test. Your attorney can get this information to you, or if you are not represented you can contact the probate court clerk in your county for more information.
As with any court case, you will need to collect and organize your documents that you intend to use for evidence. This could be legal paperwork, medical records and anything else in between to strengthen your claim as to why your being named as a guardian of this child is necessary. Your case may also be strengthened by witness testimony so you should speak to potential witnesses in advance of a hearing date to confirm their willingness and availability to testify on your behalf.
Questions about the Guardianship process? Contact the Law Office of Bryan Fagan, PLLC
If you have any questions remaining that our blog post today did not address please feel free to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with one of our licensed family law attorneys six days a week. In these consultations you can ask questions and receive answers in a comfortable and pressure free environment. If you are interested in hiring an attorney we will discuss with you our office and the services we could provide you with as a client of ours. We work with and for clients across southeast Texas and we would be honored to do the same for you and your family.