GRAND Magazine - Summer 2021 - 28

legal
What is a guardian?
A guardian stands in loco parentis (in place of a parent) over another person.
A guardian has the legal right to make decisions just as a parent would; for
example, a guardian may enroll a child in school, or get medical care for the
child. In many cases, a court appoints a guardian for a child if the child's parents
are deceased, or unable to care for the child.
When can a grandparent get legal guardianship of a
grandchild?
The U.S. Supreme Court has held that parents have a constitutional right to
direct the upbringing of their children, and that therefore, any legal action that
impedes a parent's rights, must not be arbitrary, and must conform to certain
standards. Because a grandparental guardianship impedes a parent's rights, a
court must adhere to certain constitutional norms before the courts grants
guardianship. Consequently, almost all states have laws stating that, for grandparents
to obtain guardianship over their grandchildren, the grandparents must
first prove that the parents are unfit. To get guardianship, a grandparent cannot
merely show that the grandparent would be better at raising the child than a
parent would; rather, the grandparent must show that the parents are unfit.
Although the Supreme Court has established that parents have the fundamental
right to bring up their children, the Supreme Court has allowed states
considerable latitude in deciding precisely how to provide parents this
right. Thus, guardianship law differs in every state. If you need a guardianship,
consult a lawyer in your home state.
How to get a guardianship
In most states, you have to go to court and ask a judge to appoint you guardian.
Because the process for obtaining guardianship can be quite complex, you
don't want to handle it yourself. The procedure for obtaining a guardianship is
different in every state, so ask a lawyer in your state how to proceed.
Although the procedure for being appointed guardian is different in every
state, there are some standards that all states must follow. For example, the
Supreme Court has ruled that you have to give the parents notice of the guardianship
proceeding, and the parents must have an opportunity to appear in
court and defend themselves. This means that if you apply for a guardianship
and the parent(s) object, you will likely have to go to trial before a judge.
If your grandchild is in danger and needs a guardian, don't wait. Do what you
need to do to protect your grandchild.
Kyle Persaud founded Persaud Law Office
to assist the residents of Bartlesville, OK, and
surrounding areas, with their legal needs.
Mr. Persaud practices in a wide variety of
family law issues including guardianship
law. Mr. Persaud received his B.A. from
Oklahoma Wesleyan University and his law
degree from the University of Tulsa.
28 GRAND Summer 2021

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GRAND Magazine - Summer 2021

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