Under Texas law, the parents of a child (whether biological or adopted) are guardians of that child. However, if a child’s parents are deemed by the court not to be capable of adequately taking care of their child, a guardian may be appointed to step in. The guardian then takes over the child’s day-to-day care until they turn 18.
The two most common rights a guardian of a minor has are the right to request and accept medical treatment on behalf of their ward and to enroll them in school. A guardian is also responsible for the general care and upbringing of the child, such as providing food, shelter, clothing, and nurturing.
It is important to note that, unlike a conservator who must provide for the child using their own finances, a guardian owes no fiduciary responsibility to their ward. However, with that being said, a guardian often provides some level of financial assistance, even informally.
What Is the Process to Obtain Guardianship of a Minor in Texas?
The simplest way to become a guardian to a minor is to have that child’s parents grant you guardianship. They would have to provide you and the court with a written statement wherein they grant you all a guardian’s rights, privileges, and duties for their child. However, this only works if the parents are willing participants.
You will need a court order if the parents are unwilling to grant you guardianship. The first step in this process is to file a petition to name you as guardian and then serve notice of the petition to the parents of the child for whom you wish to become a guardian. The parents must then respond with answers (a written statement responding to your petition), and the legal process may begin.
How Do Parental Rights Work With a Guardianship in Place?
Even when a guardian has been appointed to a child, that child’s parents do not lose their parental rights altogether. In situations where there is a conflict between parents and a guardian over a decision the guardian has made, such as to seek out medical treatment for the ward, the court may be asked to step in to adjudicate. Though the guardian may still make the ultimate decision, the parents do not lose their right to at least have a say in the matter.
There are particular situations where a court may decide it is in the child’s best interest to grant a guardian parental-like rights. If a parent has shown themselves to be neglectful in upholding their parental duties, such as through drug use, incarceration, or a history of emotional or physical abuse of their child, the court will take that into consideration when considering the rights of the parent. In such situations, the court may rule that guardianship overrides parental rights.
Do I Need an Attorney to Get Guardianship Over a Minor?
Certain circumstances necessitate the hiring of an attorney to be granted guardianship. Only if parents voluntarily grant you guardianship is the hiring of a lawyer not strictly necessary. However, having an attorney to guide you through the process can help you avoid mistakes and roadblocks that could slow down or even prevent you from obtaining guardianship.
If you have to file a suit to gain custody, you are required to hire an attorney. This is due to the complexity of the issue at hand, and the court appearances that must be made to gain guardianship.
For any questions you have on guardianship of a minor in Texas, call now at 281-771-0560.