Guardianship of a Child (Minor)
Authored By: Legal Aid Services of Oklahoma, Inc.
Purpose of Guardianship of a Child
Oklahoma law states that "when it appears necessary or convenient," a guardian may be appointed over the person or property of a minor. A judge decides what is "necessary or convenient" in each individual situation, focusing on the overall well-being of the child. The most common example of "necessary and convenient" is a current legal guardian's inability to care for the child.
There are a number of reasons you may wish to be the guardian of a minor.
· Enrolling a minor child in school
· Authorizing proper care for the minor child-- including day care, medical treatment, and food stamps
· Receiving state benefits for a child living in your home, over whom you do not already have legal custody
How Obtain Guardianship of a Child
To become a guardian, you must:
· file paperwork with the court clerk;
· ask a judge to appoint you the guardian of a minor child; and,
· go to a hearing and show the judge why you should be appointed as the child’s guardian.
Filing A Petition For Guardianship Of A Child
The paperwork begins with a "verified petition" which gives the judge information about the case which is required by law. For example, the petition must be made by a relative or other person on behalf of the minor. Information about the child, with whom and where he has been living, the reason it is necessary, the parents circumstances; whether the children have any Native American ancestry or the parents are in the military.
An investigation, called a Home Study is conducted to determine the background and fitness of the prospective guardians. The court will balance the need for this home study with the prospective guardians' ability to pay for this home study and may not require the home study.
Where the Guardianship case is filed
A guardianship action may be brought in the district court of the county where the:
· child lives; or,
· proposed guardian lives, filed by a member of the family.
Create the Forms Online at OKLaw.org – To use the online forms:
- you must be an adult, 18 years of age or older; and,
- want to be appointed guardian of a child or children; and,
- you must be a blood relative to the child (the grandparent, aunt or uncle or some other relative by blood to the child or children); and,
- the child or children cannot have any income or property; and,
- the natural parents must agree to the guardianship (or be deceased or in prison); and,
- if you are requesting a co-guardian, he or she must be related to the child by blood or related to you by marriage.
Information needed to create the court papers online- Gather the information on the questionnaire
You will need this information to answer questions which will complete the court forms.
Here is a list of the information you need to have with you when you fill out the paperwork or go through the online computer program:
· name of the county where you are filing the petition.
· name of any other person you are asking to be a co-guardian
· about each child:
o full name, first, middle, last legal name
o birth date, day, month, year
o social security number
o whether or not the child is a member of an Indian tribe; and if so, the name of the tribe
o whether or not a parent is in the military
o child’s current address
o city and state in which the child has lived in the past 5 years
o names of people with whom the child has lived during the past 5 years
o other court proceedings involving each child (court (district or juvenile), county, case number)
· about the parents:
o full legal names
o addresses, if possible
Creating the Forms Online
Go to www.oklaw.org> Family >Guardianship>Guardianship of a Minor – Prepare Court Forms
There is information for you to read, you can print a copy of the questionnaire.
There is a link to the program to create the forms at the bottom of the page. This takes you to the LawHelpInteractive web site to create the forms.
Please be sure to SIGN UP on the LawHelpInteractive web Site.
SIGN UP as a SELF-HELPER.
This will allow you to save all your answers after you enter them. You will be able to print your documents and save your answers in case you need to return and re-print something.
SIGN-UP at the beginning of the program to avoid losing your answers.
There is another chance to SIGN-UP to save your answers at the end of the program.
You must come back to the program to change or add information.
If you lose the paperwork, you can re-print your court papers later ONLY if you signed up and saved your answers.
All of the documents and forms you need, including instructions, will print from the program.
If you are printing at a library or other public place, you may have to pay for the printing.
If you are working on a computer and do not have a printer, LawHelpInteractive will allow you to save your information online. You can go back to the website again later to create and print the forms from another computer with a printer. You can also save the forms to a thumb or portable drive and print from another computer. You can also email the documents to yourself at the end of the questions.
Notice Required forGuardianship of a Child
Notice within ten (10) days of the hearing by mail must be made to:
· any living parents[;
· if no parents are living, then to one of the then-living grandparents who is not related to the person who wants to be the guardian;
· if there is no living parent or grandparent, or if the address is not known, then notice is required of an adult relative in the county where the petition was filed.
· if the minor is fourteen (14) years old, the child must be notified of the hearing for the appointment of guardian.
Nomination of a Minor's Guardian
If the child is fourteen (14) years old, the child may nominate his own guardian; but the judge makes the final decision. If the child is not yet fourteen (14) years old, the court will appoint the guardian for the child.
Expenses of the Child
If the minor child has a parent living or someone is already legally responsible for the support of the child, the person who is already responsible must provide financial support for the expenses of the child. If that person cannot "reasonably afford" such an expense and the child owns property, then that property may be used to support the child as directed by the court. This is determined on a case by case basis by the judge.
Guardianship over a Child Stops when:
· the guardian is removed; or,
· the minor (child) gets married; or,
· the child turns eighteen (18).
Fees and Costs
Printing the Online form
The online program can be accessed from any computer-at your home, a library, a courthouse, any place with public computer access.
You can fill out the computer program and save the answers online securely by getting a password online, then print them out in another location or email them to yourself or someone else.
If you use a public computer at a library or at the courthouse, you may be charged a fee to print the forms.
The Court Clerks' office will also charge you a fee for copying the court forms. You will have to have several copies of some of the forms and the final orders as well as certified copies of the court order appointing you as guardian.
Court Filing Fees
Petition for Guardianship of a Minor for a family member: $50.00 - if you do not have a lawyer.
If you are not able to file the petition because you do not have the $50.00, you may ask the court to waive the filing fees. The form you use to ask the court to waive the filing fee is called a Paupers Affidavit. This form is filed with the court clerk. You must be willing to tell the Judge about your income and expenses. The Judge will decide if you will be able to file the Paupers Affidavit instead of paying the filing fees OR if you must pay the filing fees to start the case by filing the Petition for Guardianship. The process for filing and approval varies by county.
OSBI Background Check Fee: $15.00
You must have an OSBI background check for the proposed guardian and each member of the guardians' household age 18 or older. This also applies to co-guardians and other people living in the household.
If you create the forms online, one blank OSBI form prints with the court forms.
Please copy or download more forms online at: http://www.ok.gov/osbi
You must send a money order in with the background check form or forms. Mail completed form, along with the money order, and an envelope (with postage) addressed to the OSBI address shown on the form.
The OSBI will return the form and information to you.
The proposed guardian will present the OSBI information to the judge at the hearing.
Service of Process or Sheriff's Service Fees: $50.00, if needed
You may be required to give notice to a parent or grandparent. The Sheriff's Office will serve the notice. There is a fee for “service of process.” There is no Paupers Affidavit or way to avoid that fee if you are required by the law to notify the parents, grandparents or the closest living relative.
Home Study Fees
The law requires that a Home Study be done by a licensed social worker. This process can take months and cost over $1,000. In some circumstances, usually where family is involved, the judge may waive the Home Study requirement. If you use the online forms a Request to Waive Home Study will print with the forms. You will ask the judge to sign them when you get a hearing date from the judge.
At the Guardianship Hearing
Be sure to put the court papers in an envelope or folder and keep them together to take to the court hearings with you. In some counties the judge’s clerk will take the court orders from you and keep them in the file until the court hearing.
Evidence presented at the Court Hearing
The judge will allow you to present evidence, including your own testimony or that of any witnesses you have come to court to support your case.
Court’s Findings and Court Order Appointing Guardian
You will need to ask the court to appoint you as guardian over the Person or the Property of the child, or both. You also must present evidence showing why you should be the guardian.
If there is a large amount of property, the judge may require a bond. The judge will ask about your financial situation and whether or how you will be able to care for the child and account for the child’s property, if there is any.
Child support must be addressed by the judge in her Order. The natural parents or current legal custodian may be required to pay child support. The judge can address this in the Order or the guardian may be ordered to get help from Oklahoma Child Support Services.
After the Guardianship Hearing
Follow up after appointment as Guardian
As the guardian, you will propose a plan for the care and treatment of the child for the coming year or the duration of the guardianship. This can be to keep the child in his present school and under the treatment of existing doctor’s care.
If the child has assets, like a bank account, or items left in a trust for the child, the guardian needs to take an inventory of all of the assets and report that to the court by filing the list of assets and estimated value in the guardianship case. The judge will tell you when the inventory is due, but be prepared to file this at least within 2 months of the Order. File the Inventory earlier if at all possible.
The judge may order a Review Hearing in a few months or in a year. As the guardian, you will need to keep information about the child to present to the judge at the Review Hearing. This could be information about the child’s health, school progress or other kinds of treatment set out in the Plan for Care and Treatment of the Child.
If the child has any assets or property, the guardian must file an inventory of those assets or the property owned by the child within 3 months of appointment as guardian,
At the end of every year, the Annual Accounting must be filed with the court clerk. This will be made a part of the court record and the judge will review and approve the accounting or set a hearing date.
Generally, unless the Court requires an annual accounting, an annual accounting and annual plan is not required when the child’s assets are worth less than $10,000 or are worth less than $40,000 if a bond has been posted by the guardian.
Annual Report on the Person
Unless ordered by the court, a guardian of the person of a child is not required to file an annual report on the person.