Grandparents’ Rights – I want to care for my grandchildren (Part 2)

I want to care for my grandchildren (Part 2)

Top 10 questions about obtaining private guardianship of your grandchildren.

What is private guardianship?

The guardian of a child is the adult who is legally responsible for taking care of the child. The guardian is usually the parent. Many children have two guardians, and some have even more.

Sometimes parents run into difficulty in caring for their children alone, and another adult would like to become a guardian of the child – either by supporting or replacing the parent. A person who wants to become a guardian must apply to the court for a “private guardianship order”.

The private guardian of a child makes a permanent commitment to raise the child and agrees to assume all the responsibilities of a parent. A private guardianship order also legitimizes the person’s relationship to the child and gives him or her the rights of a parent.

Generally, in order to apply for guardianship, you must have had your grandchildren in your care for at least 6 months. However, if appropriate for the circumstances, the court can waive this residency requirement.

What are the rights and responsibilities of a guardian of a child?

The guardian of a child has two major legal rights:

  • to care for the child or have contact with the child; and
  • to get information and be consulted so that you can carry out your powers and responsibilities regarding the child.

The guardian of a child can have some or all of the following powers:

  • making day-to-day decisions affecting the child;
  • deciding where and with whom the child will live;
  • making decisions about where the child goes to school and about the child’s culture and religion; and
  • making decisions about the child’s health treatments.

The guardian of a child has the responsibilities of:

  • supporting the child using your own money;
  • ensuring the child has all the necessities of life including medical care, food, clothing, and housing;
  • helping the child grow – physically, psychologically, and emotionally; and
  • guiding the child towards becoming an independent adult.

The private guardian of a child makes a permanent commitment to raise the child and agrees to assume all the responsibilities of a parent.

Who is eligible to apply for private guardianship?

To apply for private guardianship:

  1. either you or the child must live in Alberta, and
  2. you must have cared for the child for more than six months.

The judge may waive these requirements if it is in the child’s best interests to do so.

The court does not grant a guardianship order automatically, even if the applicant passes the above two tests. The judge must consider other things, especially the child’s best interests. If it is not in the child’s best interests to have the non-parent as a guardian, the judge will not grant the guardianship order.

The judge will also consider whether:

  • you’re able and willing to assume the responsibility of a guardian;
  • the child has consented (if the child is 12 or older); and
  • the child will benefit from your appointment as private guardian.

How do I apply for private guardianship?

If you wish to become a private guardian of a child for whom you have been caring, you must complete a series of forms required by the Alberta courts. These forms, which are all included in the Private Guardianship Self- Help kit, are available at courthouses across Alberta and online at Alberta Courts.

The applicant is required to complete all forms in blue ink and file them in their original form. If you complete the files online, ensure that your signature is in blue ink to remove any doubt as to whether they are originals, not copies.

For more information about making a guardianship application, go to: www.child.alberta.ca/home/677.cfm

Do I need help to apply for private guardianship? If so, where do I get this help?

You are not required to have help with your application for private guardianship, nor are you required to use a lawyer. Consider, though, that the process can affect family dynamics for a very long time and that it is certainly better for the child to see cooperation and compromise instead of ill will and disputes. Mediators and lawyers are skilled in helping families with these extremely difficult issues.

As a result, a fight in court should be a last resort in such disputes – it is far better to try to come to an agreement (and then have this agreement become a consent court order). This is often more easily done with the help of mediators or lawyers.

If you are having difficulty reaching an agreement, consider taking advantage of the Alberta Courts’ Family Justice Services and/or the services of private mediators and lawyers. These resources can help you create the best possible situation for you and your grandchild.

If you and the child’s guardians cannot agree (for example, when someone is opposing your application), you may need to go to court and ask a judge to make a court order awarding guardianship. Counsellors from Family Justice Services can help you with this, as well as Law Line (if you qualify), the Family Law Information Centre, Family Court Counsellor Services, and Legal Aid (if you qualify).

For more information, see Grandparents’ Rights – Where Can I Get More Information.

Must I use a lawyer?

No, you do not have to use a lawyer. However, it is recommended that you do so, as these matters can be quite complicated and can have a lasting effect on the relationships between the generations.

Can my grandchild pick, or have a say in who, his/ her guardian will be?

Not really. Only a court can determine who the guardian is.

However, there are two situations in which children can apply to court to have particular adults made their legal guardians. This can occur when the child either:

  • has no guardian at all; or
  • none of the child’s guardians wants or is able “to exercise the powers, responsibilities and entitlements of guardianship in respect of the child.”

In addition, when the child reaches age twelve, the court will often ask for his/her opinion, and the child most often has to consent to having a particular adult be his/her guardian before the guardianship order is made.

When the child reaches age twelve, the court will often ask for his/her opinion. The child most often has to consent to having a particular adult be his/her guardian before the guardianship order is made.

If we cannot agree and my guardianship application does this go to court, what will be considered?

In every case, the test is the “best interests of the child.”

As long as the parent is a capable caregiver, the judge is unlikely to change custody. Judges often prefer to leave a child with the person who already has residency, unless the situation is harmful to the child.

Many things can affect the judge’s decision. For example, it is important for the judge to know who has cared for the child in the past and what kind of attachment the child has formed with that caregiver. The judge will want to know what kind of plans the proposed guardian has for the child. A judge may ask for a home study in order to gather more information before making a decision.

The people involved in a guardianship dispute can decide to come to an agreement at any point in the process, either with or without the help of third parties. If they do reach an agreement, the home study is not completed and the terms of their agreement are sent to the judge. If they cannot agree, the judge will hear the case in court, including the results of the home study, and make a decision based on the best interests of the child.

Children most often have a say in the issue of guardianship. The older and more mature the child, the greater the weight his or her wishes will have.

What kind of financial support is available for private guardians?

Unlike with the Kinship Care program, there is no set program for financial aid to guardians. However, once a person is a guardian, he or she may qualify for all governmental child benefits. For example:

What happens if being a guardian becomes too overwhelming for me?

As the legal guardian, you have legal responsibility for the child. Therefore, you are responsible for obtaining support as required, for example, babysitters and psychological counselling.

Unlike the Kinship Care program, private guardianship does not have specific resources for guardians who need help. You may wish to contact the various Alberta and Canada-wide grandparents’ support groups listed in the Resources section of this booklet (community).

Ultimately, if you cannot handle being the guardian, you will have to make alternative arrangements for the child.

You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. June 2010.
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