How to Transfer Child Custody

Transferring Custody to a Family Member or Friend: Guardianship

Usually, parents sign over custody of a child to a family member or friend by establishing a guardianship. Although each state's laws are different, legal guardianship typically includes both legal and physical custody—meaning the child lives with the guardian, and the guardian has the legal authority to make decisions about the child's upbringing. But a legal guardianship doesn't terminate the natural parent's parental rights.

If you're in a tough spot in your life right now, creating a guardianship for your child might be a good option. As one court recognized, "guardianship gives parents the opportunity to temporarily relieve themselves of the burdens involved in raising a child, thereby enabling parents to take those steps necessary to better their situation so they can resume custody of their child in the future." (In re Jordan M., 820 N.W.2d 654, 660 (Neb. App. 2012).)

Guardianships can be temporary or long-term, and they (usually) can be revoked. Also, if it's appropriate under the circumstances, most courts will allow parents to visit with their children when they're living with guardians.

Informal Guardianships

It's not uncommon for parents to ask a trusted family member to take care of their child, without going through a formal guardianship procedure. For example, many grandparents raise their grandchildren without a court order or even a written agreement. It's less common—but not unheard of—for a parent to informally transfer custody to someone other than a relative.

Informal guardianships can be risky, particularly if they last longer than a few weeks or months. Without a court order, the guardian usually won't have legal rights regarding the child. This means they might not be able to take important steps such as providing the child with health insurance, securing medical care for the child, or giving permission to enroll in school or participate in school events.

Still, there might be alternatives to legal guardianship in certain states that address some of these risks. For example:

• As a general rule, the child's parents may sign an agreement—typically called a "power of attorney for a child" or a "parental power of attorney"—that gives a relative or friend the authority to care for their child temporarily and to make specific decisions for the child, such as authorizing medical care.
• In many states, people taking care of children without a court order may sign a "Caregiver's Authorization Affidavit," which will allow them to authorize a child's enrollment in school. Some states might also have similar forms that allow caregivers who are close relatives to authorize medical and dental care for the child. A few states (such as California and Massachusetts) combine educational and health care consent into one affidavit.
• Nevada allows parents to appoint someone as a temporary, short-term guardian for their child without getting a court order by signing a temporary guardianship agreement, which will expire in six months.

How to Transfer Custody to a Legal Guardian

If you want to get an official court order giving legal custody of your child to a relative or friend, you'll need to follow the procedures and rules in your state for creating a legal guardianship—and those rules often vary a lot from state to state.

In some states, probate courts handle guardianships, while in others a juvenile or family court might oversee the matter. Typically, the proposed guardian (or a parent) will start the process by filing guardianship papers in the appropriate court and "serving" a copy of the papers to both parents and anyone else who must receive notice of the proceeding (often grandparents and certain other relatives).

At the guardianship hearing, a judge will review all the information in the case, including any reports and recommendations from a court investigator (if that's part of the process in your state). The judge will also hear from the proposed guardian and anyone else who's there—especially the parents and any other interested people who want to attend and share their thoughts about the guardianship.

Do Both Parents Have to Agree to Appointing a Legal Guardian for Their Child?

If both parents have agreed to appointing a legal guardian for their children, the process will go more smoothly (and quickly).

States might require additional steps and safeguards when a parent refuses to consent, such as requiring a full investigation. As a general rule, however, the guardianship may still go forward over a parent's objection if, after reviewing all of the evidence, the judge finds that staying or returning to a parent's custody would be harmful to the child.

Also, if the judge finds that a parent has abandoned the child, that parent's consent typically won't be required for the guardianship.

Other relatives—and anyone who has received notice of the guardianship proceeding—will also have a chance to object and to appear at the hearing to explain why they don't believe it's a good idea. Ultimately, the judge will decide whether allowing the guardianship would be in the child's best interests.

Does the Child's Guardian Have to Be a Family Member?

In most states, both relatives and non-relatives can be appointed as guardians. Although some courts might have a preference for the guardian to be a family member, this preference is easily overcome if it's clear that it's better for the child to be placed with someone other than a relative.

Can You Get Your Child Back After Transferring Custody to a Guardian?

Guardianships are usually open-ended, although a court's order might provide that the guardianship will end after a certain date or after something happens. Regardless, either parent (or the guardian) may go back to the court and ask to have the guardianship terminated. Usually, a judge will grant that request if the guardianship no longer is necessary or serves the child's best interests.

Do You Need a Lawyer to Transfer Custody to a Legal Guardian?

You don't technically don't need a lawyer to set up a guardianship for a child, and you can often find information about the process on your state courts' website or your local court's website (look for self-help or resources pages). Alternatively, search online for terms like "legal guardian for child or minor," and read the results that are specific to your state.

You should know, though, that it can be difficult to navigate the complicated guardianship process without the help of a lawyer. If you don't follow all of your state's requirements, you could run into delays and problems—including having your request denied because of a technicality. Many parents ultimately hire a local attorney who's experienced in guardianships to help them navigate the complicated process.