When is Guardianship an Appropriate Action in Georgia?


Under Georgia law, the parents of a child have all legal authority over that child. However, in some cases, when parents are unable to parent, other parties, including an adult who is not that child’s parent, can gain such authority. This is done through a guardianship action, which is filed in the probate court.

Often, these parents are able to stay in touch with the child and may regain all their parental rights at a later date. While these actions can be contested by the parents, most guardianships are done with their consent. At a later date, they can petition the court to terminate the guardianship and regain all power over their minor children.

It is important to note that a guardianship can be ended under only four circumstances:

  • The child turns 18;
  • The child is adopted, gets married, joins the military, or is emancipated by the court;
  • The child dies prior to age 18;
  • A court order ends the guardianship (either by consent of adults involved or after the parent seeks to revoke the guardianship and contested hearing).

    If the child is 18 or has otherwise been declared an adult, you will be unable to obtain guardianship. In all other cases, you can petition the court for guardianship. The court will take into consideration what is best for the child and the fitness of the party seeking the guardianship.

    What Does a Guardianship Do? Why Get A Guardianship?

    If you are able to obtain a guardianship over a minor child, you will become that child’s legal representative. If you have a guardianship, you can have the power to:

    • enroll the child in school;
    • authorize medical treatment for the child;
    • sign authorizations for the child to obtain licenses or IDs;
    • add the child to your insurance, in most cases.

      Generally speaking, having a guardianship allows a person to act as a parent would when interacting with the government or medical personnel. Often, a person seeks a guardianship due to circumstances in the child’s parent’s life which render them unable to care for a child. Many times, these circumstances are not permanent and the parent just needs someone to take care of the child for a short time. The advantages of guardianship are that they typically can be ordered by the court more quickly than other similar lawsuits and they allow the parent to regain legal authority over the child more easily.

      Difference between Guardianship and Third-Party Custody Actions

      A guardianship is different from other types of lawsuits, third-party custody actions, or third-party visitation actions. The latter actions are permanent actions to either gain custody of a child from the parents or court-ordered visitation rights to a child. These actions can only be brought by certain people, typically blood relatives such as grandparents, aunts, uncles, elder siblings, or great-grandparents. Those actions are also mostly permanent, as opposed to guardianships, which are usually revocable. Finally, third-party actions are brought in the superior court as opposed to the probate court, and there is a very high standard of proof a third-party must meet in order to win such a lawsuit.

      Obtaining a Guardianship

      To obtain a guardianship, the person seeking it must file a petition for appointment of guardianship in the probate court located where the parent and child reside. If the parent (or parents) of the child chooses to, they can sign a consent to the guardianship and the court will then issue an order granting the guardianship. If the parent (or parents) does not consent, they will have to be served with a copy of the petition, and a hearing will be held in front of a probate court judge to determine if the guardianship should be granted. As stated above, guardianships are typically done by consent (but not always) as opposed to third-party custody actions, which are almost always adversarial.

      Ending a Voluntary Guardianship

      In cases in which the guardianship was consented to by the parent or parents, the parent can seek to revoke the guardianship by filing a petition to revoke with the probate court that issued the guardianship. If the person who received the guardianship does not object to the petition within ten days, the guardianship will be terminated. If there is an objection filed with the probate court, then a hearing will be scheduled with the juvenile court to determine if the guardianship should continue or be terminated.

      Guardianship Scenarios

      To help you understand the information above, here are some examples:

      The mother is in the US military. She was never married to the child’s father nor is he in the picture. She is set to go on a one-year deployment to Afghanistan and wants the grandmother to take care of the child while she is deployed. The grandmother files a petition for appointment of guardianship in the probate court. The mother signs documents consenting to the guardianship and the probate court orders it. The grandmother now has the legal authority to enroll the child in school and authorize medical treatment for the child. The mother finishes her deployment and files a petition to revoke the guardianship. The grandmother does not contest the revocation and the guardianship is terminated, thus giving all parental rights back to the mother.

      A mother is homeless. She was never married to her child’s father and he is not involved with the child. The mother wants the grandmother to take care of the child while she gets her life together. The grandmother files a petition for appointment of guardianship in the probate court. The mother signs documents consenting to the guardianship and the probate court orders it. The grandmother now has the legal authority to enroll the child in school, authorize medical treatment for the child, and add the child to her insurance. The mother, after several months, changes her mind and files a petition to revoke the guardianship. The grandmother does contest the revocation, and a hearing is scheduled in the juvenile court to determine if the guardianship should continue.

      A grandmother seeks permanent custody of her grandchild. A guardianship would be an inappropriate action. She should pursue a third-party custody action in the superior court to accomplish her goals.

      Contact an Attorney

      If you are considering caring for another person’s child or having someone care for your child, contact the family law attorneys at Stearns-Montgomery & Proctor. They can assist you in understanding the paperwork and procedures necessary to obtain a guardianship.