Gaurdianship

Hingham Guardianship of a Minor Lawyers

Passionately Protecting Children & Their Best Interests

Traditionally, families consist of a child and their biological mother and father, though there are many cases in which this arrangement does not work. Tragically, the number of cases where one, or both, of the biological parents are not able to raise their children has surged with the opioid crisis. In countless cases, guardians such as caring grandparents, aunts, uncles, distant relatives, or even family friends often step up for the child. However, even when there is someone willing to fill in for a child’s parents, there can still be challenges in obtaining the legal recognition as a child’s guardian that is necessary to make major life decisions on the child’s behalf. At Lynch & Owens, P.C., our dedicated and experienced Hingham guardianship lawyers have the expertise to overcome these obstacles with ease as we strive to protect the best interests of all children involved.

What Is a Guardianship of a Minor Case?

A guardianship case is when an adult takes steps to become the legal guardian of a child who is not his or her biological offspring. It is important to note that guardianship cases are distinct from DCF cases, in which it is the Massachusetts Department of Children and Families attempting to supervise a child’s upbringing. However, there are similarities between guardianship and DCF cases as both frequently involve the DCF in some capacity. More importantly, though, both terminate or severely limit the custodial rights of the child’s biological parents. Courts take a parent’s custodial rights of their children very seriously, and will only limit them by appointing a guardian if:

  1. The biological parents provide consent, or
  2. The Probate and Family Court finds the biological parents unfit

Our trusted legal team at Lynch & Owens does not currently practice in Juvenile Court. However, we represent parents and guardians in Probate & Family Court proceedings regularly.

Guardianship When Both Parents Consent

When both of a child’s biological parents consent to the appointment of a guardian, these cases can be relatively simple as there is little to discuss or argue over because the parents have agreed to relinquish their parental rights and obligations for their child, either wholly or in part. Most of the time, these cases merely involve drafting and signing motions for the court to look over and approve.

In many situations, though, one or both parents have objections to the appointment of a guardian for their child. By withholding their consent, either parent can prolong a guardianship case and force a potential guardian to show a court the parent is unfit to raise their own children, thus raising Constitutional concerns.

Proving Parental Unfitness

If either one of a child’s biological parents refuses to consent to the appointment of a guardian, then friends, relatives, or anyone interested in becoming a child’s legal guardian must prove the non-consenting parent is unfit to raise the child. Not only is there a strict legal standard for what it means to be an unfit parent, but there are Constitutional rights at stake along with resources for free legal representation for a parent to defend those very rights.

The Narrow Definition of Parental Unfitness

Proving a biological parent is unfit to raise their child is no easy feat, in large part because of the narrow definition of parental unfitness used in Massachusetts courtrooms. According to state laws, parental unfitness “usually, although not necessarily, imports something of moral delinquency. Violence of temper, indifference or vacillation of feeling toward the child, or inability or indisposition to control uniparental traits or character of conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from other moral defects.”

This definition goes back to the 1932 case, Richards v. Forrest. Despite its age, the Richards standard for parental unfitness has survived in numerous subsequent Massachusetts decisions, remaining the law of the land.

It is important to note while there are differences between the standards for parental unfitness and for the best interests of the child, typically reserved for child custody issues during a divorce, there are also similarities. It will always be in the best interests of the child to be raised by a fit parent rather than an unfit one, so the child’s best interests will affect, but not dictate, a finding of parental fitness. However, it is the child who is the center of the best interest standard, while it is the parent who is the center of the question of fitness. Additionally, while courts satisfy a child’s best interest by putting them with a parent it finds comparatively better, declaring a parent unfit requires a far stronger showing.

Constitutional Implications of Declaring a Parent Unfit

There are also Constitutional implications for declaring a parent unfit to raise their own biological child. Under the U.S. Constitution, biological parents have a fundamental right to act as parents for their children. While not specifically mentioned in the U.S. Constitution, the Supreme Court of the United States has read it into the liberty rights guaranteed by the 5th and 14thAmendments. In the 2000 case Troxel v. Granville, the court stated: “the liberty interest at issue in this case—the interests of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

Because parents have a fundamental right to the custody of their children, courts are extremely wary of stripping those rights away and will require extensive showings of parental unfitness in a courtroom before they strip those rights away.

Free Legal Court Appointed Attorneys for Parents, But Not Guardians

In addition to the challenge of proving a biological parent is unfit, guardians seeking to help children with struggling parents must also cope with the fact that biological parents are guaranteed free legal representation in Massachusetts.

In Guardianship of V.V., the Supreme Judicial Court decided the fundamental right of a parent to the custody of their children gave them the right to counsel in cases that might strip them of this right. While parents have always been entitled to an attorney in cases brought by the DCF, Guardianship of V.V. extended this right to guardianship cases as well.

The practical impact of this case places guardians who want to step in for a child’s interests at a disadvantage because they now have to cover the costs of their own lawyer, while parents trying to keep custody can ask the Probate and Family Court to appoint one, free of charge.

Important note: To the extent attorneys are available for parents and/or guardians, such attorneys are appointed by the Court. The guardianship attorneys at Lynch & Owens are restricted to private, paying clients and are not currently available for court appointments. If you have questions, please contact the court in your county for more information on court-appointed attorneys for indigent parties.

Contact Our Compassionate & Knowledgeable Hingham Guardianship Lawyers Today

The supportive and qualified legal advocates at our firm, Lynch & Owens, P.C., understand and believe guardians are the real unsung heroes of many difficult family situations. Sadly, the legal system favors the rights of parents to the extent that it can be difficult for guardians to come forward, protect vulnerable children, and provide the support and guidance children in danger truly need. This is why our top Hingham guardianship attorneys strive to positively and effectively represent those in need. Together, we can help change the life of a child and give them the care and nurturing environment they deserve.

Schedule an initial consultation today. Contact us online.

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