A court may appoint an individual as a guardian, who is not the parent of a minor child under age 18, when an action under G.L. Chapter 209C is not pending. Appointment of a guardian may be appropriate when one or both of the parents are found to be unfit, unavailable to care for the child, abandon the child, or surrender custody to a third party and guardianship is in the child’s best interest. Massachusetts General Laws, Chapter 201. Once the guardian is appointed, the guardian will make all of the decisions about the child’s care and custody. The guardian will have the responsibility to determine where the child lives, attends school and what kind of medical treatment the child receives. In disputed cases, a nonparent cannot be appointed as a guardian absent a finding that a parent is unfit. In Guardianship of Estelle, 70 Mass. App. Court 575 (2007), the appellate court found that if the lower court found the father to be fit, the co-guardianship arrangement granted by the lower court could not stand. The father was entitled to custody despite the child being cared for by an uncle and aunt, without objection by father, for 7 years. When a child is 14 years of age, the parents and child can assent to the appointment of a third party guardian.
To begin a guardianship, a party must file a petition with the probate and family court where the child resides. A party must also file an Affidavit Disclosing Care and Custody Proceedings. The court may also require the petitioner to file a bond to protect the child’s assets. If the child has property less than $100, then the bond can be filed without sureties. If sureties are required, the petitioner can use personal sureties. This requires two individuals to sign the petition who are pledging their liability for the penal sum. The penal sum is defined as an amount equal to one and one-half times the value of the child’s personal estate. The penal sum will need to be listed on the bond along with the signatures from the sureties. If the petitioner cannot obtain personal sureties, corporate sureties may need to be obtained. In this circumstance, the penal sum is the value of the child’s estate.
If the parents, and where required the child, assent to the guardianship on the petition, the petitioner can request a hearing to obtain permanent guardianship when the petition is filed with the Affidavit Disclosing Care and Custody Proceedings and the bond. If the parental assents or child’s assent when required are missing, the court will issue a citation. In the citation, there will be a return date listed by which an interested party can file an objection. The petitioner must send by certified mail a copy of the citation at least 14 days before the return date to the parents, the child if 14, to any person with court ordered custody, and any person with whom the child resides. The original citation and the certified mail return receipt requested cards must be filed with the court once service is completed to demonstrate that notice was provided. Notice to DOR must also be provided by certified mail if the child receives public assistance. If the parents, and the child when required, do not sign the certified mail cards or file an appearance in the action, a citation must be served by publication in a newspaper designated by the court and will be required to be published at least 7 days before the return date. The newspaper publication of the citation will need to be cut out of the paper and filed with the court along with the original citation, certified mail cards and return of service. Once these documents are filed by the petitioner, the court can schedule a hearing on temporary guardianship of the child. The petitioner will need to file a motion and bond for temporary guardianship. All parties previously served with the citation will need to be served with the motion and bond by first-class mail. At the hearing on temporary guardianship, the court must consider the fitness of the parents to care for the child and whether the guardianship is in the best interest of the child. If the court enters the temporary guardianship, it can last for a period of 90 days. The temporary guardianship can be renewed if it will expire before the hearing on the permanent guardianship. Even if the guardianship expired, the court can order, nun pro tunc, to continue the guardianship back to the date it expired.
A petitioner must request a hearing if seeking permanent guardianship of a child. However, again, if the parents have assented to the guardianship and a child who 14 years of age or older, has assented to the petition, the guardian can request a final hearing when the petition for guardianship is initially filed. Otherwise, a hearing will need to be requested. Lastly, even if permanent guardianship is awarded to the petitioner, the parent can seek to regain custody by showing a substantial and material change in circumstances and it is in the child’s best interest to return to the parent.