What is Guardianship, How is it Transferred and How Can You Get it Back?
In Connecticut, a guardian is a person who has the obligations to provide care and exert control over a minor child (under 18), including the right and responsibility to make several key decisions, such as education, health and residence. Parents have guardianship rights over their children until and unless the guardianship is removed or transferred by a court. Certain non-parents can assume or be appointed guardianship rights over a minor. There are many circumstances for that to happen and it can be done in either probate court or juvenile court depending on how the proceeding is initiated.
Which court: probate or juvenile?
Connecticut has two court systems: Probate and Judicial. Probate courts are arranged in local districts throughout the state and presided over by elected probate judges. There are also regional children's courts (New Haven, Meriden, New London, Waterbury, Windham and Hartford). The judicial branch operates the Superior, Appellate and Supreme Court. The division of the Superior (trial-level) Court for guardianship matters is the Superior Court for Juvenile Matters.
When the State, often through DCF, the Department of Children and Families, initiates a neglect/abuse/uncared-for proceeding, it must be filed in and proceed through juvenile court. DCF is the petitioner and the parents and/or existing legal guardians are the respondents. An attorney is appointed to represent the child. Transfer of guardianship to individuals other than the parents is a possible disposition. Guardianship can also be vested in just one of the parents, removing it from the other. If a child is in DCF care (commitment or order of temporary custody), a relative has standing to intervene in a child protection matter for the purpose of seeking guardianship.Non-state actors, may file petitions in probate court to remove a parent as guardian.
Who can file petitions to remove or transfer guardianship?
Standing, which is the legal ability to file a petition, is limited to adult blood relatives of the child, individuals having actual physical custody of the child or an attorney for the child. The proper probate district is that in which the child is domiciled or is located in at the time of the filing.
Transfer from probate to Superior Court
Guardianship proceedings that originate in probate court may be transferred to Superior Court upon motion of a non-filing party. Additionally, final probate court decisions may be appealed to the Superior Court.
When a court removes or transfers guardianship, unless it is a permanent transfer, the former guardian may petition the court for reinstatement. The petitioning party bears the burden of demonstrating the the reasons for the original removal/transfer no longer exist AND that it is the child's best interests for guardianship to be reinstated. Whether the case is in probate or juvenile court, DCF typically prepares a study for the Court. The parties--which in this case would be the former guardians, the current guardian and the child (but not DCF)--can reach an agreement or proceed to trial. The proper venue for a guardianship reinstatement is the court that removed the guardianship.
Other Types of Guardianship
This post focused on standard transfers of guardianship. There are also standby guardianships, in which a parent or guardian may designate a person to assume guardianship upon a specific event. Under a testamentary guardianship, which could be created by a will or other document, a replacement guardian may be named to assume guaridanship upon the parent or guardian's death. The actual appointment of a guardian is up to the discretion and approval by the court. There is also a temporary guardianship under which a parent or guardian may ask for a guardian to be appointed for no longer than one year and can terminate the guardianship on his or her own. Lastly, there is a permanent legal guardianship. In that situation, the former guardian cannot petition for reinstatement.
You might have noticed that the family division of the Superior Court is not a venue for guardianship matters. That is true. It is either probate or juvenile. That does not mean that guardians and parents cannot go to family court. Depending on the order of the court that transferred guardianship, family court might be the only place to go for visitation issues. Although a guardian has the authority to decide visitation (again, a court order might establish a visitation schedule), a parent who lost guardianship but still has parental rights may go to family court to seek visitation.
I have handled guardianship matters in probate and juvenile courts in Connecticut. The cases can very well be complicated, especially if there is not an agreement. If you are seeking guardianship or a reinstatement, or defending against a petition seeking guardinship or reinstatement, please contact me to discuss your case.