Every child deserves love, care and protection, and to have their well-being safeguarded by adults who consistently prioritize their best interests. While this role is ideally played by a child’s parents, in some cases, an alternative care-giver needs to step in. In Florida, this process is facilitated by the appointment of a child guardian, who then becomes legally responsible for the child’s well-being, and is authorized by the court to make decisions concerning the child’s care, place of residence, schooling, medical treatment, and so on.

However, arranging guardianship for a child can be a complex legal and administrative process. If you’re concerned a child in your family may need a guardian, this article is for you: we unpack the kinds of situations in which child guardianship may be necessary, what guardianship entails, and how a guardianship attorney can help your family during this challenging period.

Guardianship For A Child: The Basics

In brief, guardianship is a special legal relationship in which one person (the guardian) is appointed by a court to manage the personal affairs, and make decisions on behalf of, another person (their ward). In the case of adults, guardianship may be necessary when they have lost the legal capacity to make sound decisions in their own best interests. By contrast, guardianship for a child may be necessary when their parent/s are no longer able or willing to take care of them. Statute 744.3021 regulates child guardianship in Florida, and it sets out the process by which a person – usually a family member – may be appointed to look after a child in their parents’ stead.

How Does Guardianship Differ From Custody?

It is easy to confuse child guardianship with custody, but there are significant differences between these two legal concepts. Custody arrangements are put in place after a parental separation or divorce, and determine parental time-sharing (in other words, how co-parents who no longer live together will share access to their child during the week, on weekends and in the holidays). They also determine how decisions about a child’s welfare are to be made jointly by co-parents. In the case of guardianship, parental rights and responsibilities are granted to a person who is not the child’s biological parent, in circumstances when the child’s parents can no longer look after them. In many cases, guardians are adult siblings, grandparents, aunts and uncles, or close family friends.

Under What Circumstances May Child Guardianship Be Necessary?

Removing a parent’s right to make decisions for their child is a significant intervention, and guardianship for a child is accordingly only arranged in very specific circumstances. Typically, child guardianship is only appropriate in the following cases:

• A child’s parents have both died;
• A child’s parents have abandoned them or are no longer willing to care for them;
• A child’s parents have become incapacitated and/or are no longer equipped or able to care for them (for example, they are struggling with a substance use disorder, are suffering from acute mental illness, have been incarcerated, are in severe financial distress, or have suffered a traumatic brain injury); or
• A child has received an inheritance or other financial award of more than $15,000.

Guardianship may also be necessary when a child is being raised by a single parent and one of the above circumstances occurs in respect of that parent.

Generally, before a court appoints a guardian, it will apply the ‘best interests of the child’ test, which considers a range of factors to determine which outcome will be in the child’s overall long-term interest.

How Long Does Guardianship For A Child Last?

Child guardianship, like custody arrangements, usually terminates when a child turns 18, unless they have special needs and lack full legal capacity. However, it is important to note that a child guardian can also be appointed on a temporary (rather than permanent) basis. Temporary guardianship is appropriate when a child’s parent is likely to regain their ability to care for their child – for example, after completing a rehabilitation program and achieving sobriety, or recovering from a brain injury/coma. In the event that a child’s parent is unlikely to ever be able to look after them again, or has passed away, a permanent guardianship appointment (that will remain in place until the child reaches majority) will be necessary.

Who Can Become A Guardian?

Any competent person who resides in Florida and has a demonstrable interest in the child’s well-being can petition the court to be appointed as their guardian. Non-residents of Florida can also petition to be appointed as guardians if they are close relatives of the child. It is very common for grandparents to be appointed as guardians, as well as aunts and uncles, godparents, or older siblings. You do not need to have special qualifications to be appointed as a guardian, but the court may request a criminal record and credit history check. It may also ask other questions about your personal background and financial position to determine that you are a suitable appointment.

What Are The Legal Duties Of Guardians In Florida?

A guardianship appointment comes with serious responsibility, and there are several legal duties that guardians must fulfil to the satisfaction of the court. The most significant of these is the duty to create a guardianship plan and file regular reports with the court detailing the current circumstances and well-being of the ward. This allows the court to ensure that the guardian is complying with their legal duties as guardian and taking proper care of their ward. If the guardian does not meet these reporting requirements, or it is clear that they are neglecting their duties, the court may terminate the guardianship arrangement and appoint a substitute guardian.

When To Seek Advice From A Guardianship Attorney

If a family member is in crisis and you are concerned that their child’s needs are not being looked after, guardianship may be an appropriate intervention. However, the guardianship appointment process can be complex, especially for those who are unfamiliar with Florida’s court system. Seeking guidance from an attorney with expertise in guardianship for children can help your family to navigate both the decision to petition for guardianship and the legal duties which follow once your petition has been successful. A reliable legal advisor will be an invaluable source of support during this challenging period, and will give you peace of mind that whatever course of action you follow, the best interests of your young relative will be protected.