What are the main differences between Minor Guardianship and Emergency Minor Guardianship?

The short answer is there are two main differences between minor guardianship and emergency minor guardianship.  

1. The first is the length of time each can last.

Minor guardianship can potentially last until the child is no longer a minor.  Emergency minor guardianship is temporary, and it lasts up to 60 days. In some cases, emergency minor guardianship can be extended an additional 60 days.  

2. The second major difference between the two is the type and amount of evidence a petitioner must show the court.

 As a result, it is easier to gain emergency minor guardianship over a minor child than it is to gain minor guardianship. 

This, again, is the short answer.  Since this is a lawyer’s blog, you know there’s going to be more of an explanation than that.

Minor Guardianship Basics:

What is minor guardianship? 

Minor guardianship is the State Legislature’s answer to the question of what to do when there seems to be no parent that can properly provide for an unemancipated minor child.  If there are no competent adults in a child’s life, the state will take custody through a dependency action.  With dependency actions, CPS and the foster care system will likely be involved, and the child is often placed with non-family members. The state becomes the child’s “guardian”.  By contrast, in minor guardianship, someone petitions the court to appoint a person to take care of the needs of the minor child and to make decisions on behalf of the minor child.  The person petitioning for minor guardianship can be any person in the minor child’s life, including the minors themselves, and the person petitioning does not have to nominate themselves to be the minor guardian.  The typical parties who petition for minor guardianship are relatives or close family friends of the minor child.  

When will the court appoint a guardian for a minor?

Minor guardianship is a relatively new legal term in Washington state.  Prior to January 2021, we used RCW 26.10, which governed non-parental actions for child custody.  Today, we use the Uniform Guardianship Act, which is found under RCW 11.130.  Under this new law, the court may appoint a guardian for a minor if the court thinks it is in the child’s best interest, and one of the following is true: 

  • (a) each parent of the minor consents, 
  • (b) all parental rights have been terminated; or 
  • (c) there is clear and convincing evidence that no parent is willing or able to properly parent the child.  

How does the court determine whether a parent is willing or able to properly parent the child?

When the court is determining whether a parent is willing or able to properly parent the child, the court is looking at 6 specific factors. Those factors are known as “parenting functions.”

What are “parenting functions”?

“Parenting functions” means those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child. Parenting functions include: 

  • (a) maintaining a loving, stable, consistent, and nurturing relationship with the child; 
  • (b) attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, and day care, and engaging in other activities which are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family; 
  • (c) attending to adequate education for the child, including remedial or other education essential to the best interests of the child; 
  • (d) assisting the child in developing and maintaining appropriate interpersonal relationships; 
  • (e) exercising appropriate judgment regarding the child’s welfare, consistent with the child’s developmental level and the family’s social and economic circumstances; and 
  • (f) providing for the financial support of the child.

If the court determines minor guardianship is appropriate, the court will appoint either the petitioning party and/or some other adult in the child’s life to be the child’s caretaker and custodian.  If the reasons for minor guardianship continue to exist, the minor guardianship will remain in place until the child is no longer a minor or is emancipated.

What important notices are required for minor guardianship?

When filing for minor guardianship, you must personally serve a copy of your petition and all documents filed on: 

  • the child, if the child is age 12 or older,
  • the child’s parents, 
  • if there are no parents, the adult nearest in kinship that can be found with due diligence, and 
  • someone other than a parent who has court-ordered custody or guardianship.

Additionally, the following people have to be mailed a copy of the petition and all documents filed or otherwise served in a manner likely to give them notice: 

  • anyone else who has primary care and custody of the child, 
  • anyone who had primary care and custody of the child for at least 60 days during the last 2 years, or for at least 2 of the last 5 years, 
  • anyone who the child has asked to be their guardian (if the child is 12 years old or older),
  • anyone who a parent has asked to be the child’s guardian,
  • the child’s conservator, if any, and
  • each grandparent, if known.

If any of the children involved in either a minor guardianship or an emergency minor guardianship are Native American, there are additional notice requirements to take into consideration.

    Emergency Minor Guardianship Basics:

    What is emergency minor guardianship?  

    Emergency minor guardianship, as mentioned above, is a short-term solution for the care of a child.  The court may appoint an emergency minor guardian for the minor on its own petition, on the petition of a person interested in the minor’s welfare, or by the child itself.  The court will appoint an emergency minor guardian if it is likely to prevent substantial harm to the minor’s health, safety or welfare, AND no other person appears to have authority and willingness to act in the circumstances. 

    What to expect when it comes to the length and court process of emergency minor guardianship?

    The court will initially grant emergency minor guardianship for up to 60 days.  If, before the 60 days are up, the circumstances remain the same, the court may grant an extension of 60 days.  For the court to grant the extension, the petitioner would have to show that the danger to the child will subside before the extension expires, or that they have filed a petition for minor guardianship, and they are awaiting a hearing and final orders in that matter.

    Since emergency minor guardianship is temporary and based on an immediate substantial harm to a child, the court can grant emergency minor guardianship without notice to any interested party.  However, notice must be given to all interested parties within 48 hours of appointment of the emergency minor guardianship, and a hearing must be held within 5 business days of appointment.

    What important notices are required for emergency minor guardianship?

    When filing for emergency minor guardianship, you must serve a copy of your petition and all documents filed on:

    • the child, if the child is age 12 or older, 
    • the child’s parents, 
    • anyone other than a parent who has care and custody of the child, and
    • any attorney that has been appointed.

    If any of the children involved in either a minor guardianship or an emergency minor guardianship are Native American, there are additional notice requirements to take into consideration.

    Get Legal Help

    There are multiple issues to consider when determining if minor guardianship is a good fit for you and your loved ones.  If you think minor guardianship might help a child in your life, please contact our office to set up a consultation with one of our family law attorneys.  We are here to help you find the best solutions for your family. Reach out to Navigate Law Group for an experienced attorney to assist you. 

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    Disclaimer

    Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue you should consult an attorney.