Types of Minor Guardianships in Washington

This is part two in our series on Minor Guardianships with the focus on the types of Minor Guardianships in Washington State. Part one focused on what is (and what isn’t) a Minor Guardianship, and alternatives to Minor Guardianships. In this section we focus on the three types of Minor Guardianships under RCW 11.130; their strengths, weaknesses, requirements, and some helpful notes. Additionally, as a bonus section, you will find information on what to do if you need an immediate order to protect a minor.

We hope you find this helpful and please keep in mind that this is a general guide, not legal advise to your specific situation. If you’re trying to figure out your next steps or want to see which type of Minor Guardianship makes sense for your case, feel free to give our office a call to schedule a consultation.

Types of Minor Guardianships

1. Minor Guardianships

Also sometimes referred to as regular Minor Guardianships, long-term Minor Guardianship or full Minor Guardianships. I usually will try to avoid the term full Minor Guardianships because a Minor Guardianship can be a full Minor Guardianship or limited Minor Guardianship depending on whether the parents retain decision-making or visitation rights. For simplicity and clarity, I will call this a regular Minor Guardianship. A regular Minor Guardianship is when you’re requesting to be the minor’s guardian for longer than what is allowed under the Emergency Minor Guardianship and up to the minor turning 18 years old.

Basis for Appointment (RCW 11.130.185(2)): The court may appoint a guardian for a minor if the court finds that it is in the minor’s best interest and any of the three following apply:

• a) Each parent of the minor, after being fully informed of the nature and consequences of guardianship, consents;
• b) All parental rights have been terminated; or
• c) There is clear and convincing evidence that no parent is willing or able to exercise parenting functions as defined in RCW 26.09.004.

Under RCW 26.09.004, there is a definition and six parenting functions for the court to consider. These functions include 1) maintaining a loving, stable, consistent, and nurturing relationship; 2) attending to the daily needs of the child; 3) attending to adequate education for the child; 4) assisting the child in maintaining appropriate interpersonal relationships; 5) exercising appropriate judgment; and 6) providing financial support.

Unless the parents consent or their parental rights have been terminated, the petitioner has the burden of proof to show that there is no parent willing or able to exercise these parenting functions.

A regular Minor Guardianship is initiated by filing a Minor Guardianship Petition, pursuant to RCW 11.130.190 – Petition for appointment of guardian for minor. Typically you file the petition, a summons, notice of hearing, and several other documents as required under RCW 11.130 – Article 2 – Guardianship of Minor. You can access the required Minor Guardianship court forms here or buy a packet with the necessary forms from the Clark County Clerk’s Office or the Cowlitz County Clerk’s Office. You take the petition, summons, notice of hearing, other required documents, possible filing fee, and file everything with your local clerk’s office.

Note: Minor Guardianship cases, regardless of what type, are always filed with a county superior court, never with a district court nor a municipal court. If you and the minor have lived in let’s say Camas, WA, for at least the last six months before filing for the Minor Guardianship, you would file the Petition and start a new case in Clark County Superior Court, not Camas-Washougal Municipal Court.

Once you have filed the documents and started a new case, you must have someone personally serve the other parties. You cannot be the one to personally serve the parents as you’re a party to the case, it must be a third party. Typically, personal service is required for:

1. each parent of the minor or, if there is none, the adult nearest in kinship who can be found with reasonable diligence;
2. any minor over the age of 12 years old that are part of this action;
3. someone other than a parent who has court-ordered custody or guardianship.

Note: If you believe there is good cause not to serve the minor over the age of 12 years old with certain documents, you may motion the court to withhold certain documents from the minor.
Besides the individuals that are required to be personally served, RCW 11.130.195(1)(b)(i) also lists individuals that need to be given notice.

A regular Minor Guardianship Petition does not grant you immediate custody or decision-making over a minor. Typically, unless the parents’ consent or another agreement is reached, a Minor Guardianship Petition is decided at an evidentiary hearing or bench trial.

To summarize: a regular Minor Guardianship is filed when you wish to have guardianship over a minor for longer than statutorily allowed under the Emergency Minor Guardianship and up to the minor turning 18 years old. There are several documents that the petitioner needs to file as part of a regular Minor Guardianship. A regular Minor Guardianship does not grant immediate custody nor decision-making over a minor. Typically, unless the parents consent or another agreement is reached, a regular Minor Guardianship Petition is decided at an evidentiary hearing or bench trial. The petitioner has the burden of proof to show that by clear and convincing evidence that there is no parent willing or able to perform the parenting functions.

2. Emergency Minor Guardianship

Emergency Minor Guardianships are subject to RCW 11.130.225. Similarly to a regular Minor Guardianship, an Emergency Minor Guardianship (EMG) typically starts by filing the Emergency Minor Guardianship petition. Also, similarly to a regular Minor Guardianship, an Emergency Minor Guardianship requires a summons, notice of hearing, and has mostly the same other requirements as a regular Minor Guardianship. As alluded above, the biggest difference between the two petitions is how long each type of petition can be valid for.

Note: If you have filed a regular Minor Guardianship Petition, instead of also filing an Emergency Minor Guardianship Petition, you can alternatively file a Motion for Emergency Minor Guardianship Order.

Under RCW 11.130.225(2), the duration of the Emergency Minor Guardianship may be for up to sixty days and be extended once for up to an additional sixty days if the court finds that the conditions for appointment of the emergency guardian continues. The courts in both Clark County and Cowlitz County have regularly interpreted this language to mean that the court can extend the Emergency Minor Guardianship for up to 120 days, if the original reasons for the Emergency Minor Guardianship continues, regardless of how many hearings you have in that time period.

Note: Under RCW 11.130.225(7), the court may extend the Emergency Minor Guardianship pending the outcome of a full hearing on any filed Minor Guardianship Petition or Standby Guardianship Petition.

Basis for Appointment (RCW 11.130.225(1)): The court may appoint an emergency guardian for the minor if the court finds:

• a) Appointment of an emergency guardian is likely to prevent substantial harm to the minor’s health, safety, or welfare; and
• b) No other person appears to have authority, ability, and the willingness to act to prevent substantial harm to the minor’s health, safety, or welfare.

Unlike a regular Minor Guardianship, which can end with an evidentiary hearing or bench trial, an Emergency Minor Guardianship should expire at the 60 or 120 day mark, unless RCW 11.130.225(7) applies.

Note: Whether it’s a motion or petition for an Emergency Minor Guardianship, a hearing must be scheduled on the request and the parents, and any other parties that are required by law, must be served or notified. A motion or petition for an Emergency Minor Guardianship is not the same as an immediate order, see below for what to do if you need an immediate order to protect a minor.

To Summarize: An Emergency Minor Guardianship Petition is for a limited duration, typically 60 to 120 days, with one general exception. The petitioner has the burden of proof to show that appointment of an emergency guardian is likely to prevent substantial harm to the minor’s health, safety, or welfare, and no other person has the authority, ability, or willingness to prevent such harm. The requirements are typically the same as a regular Minor Guardianship Petition including a summons, notice of hearing, and either personally serving the other parties or giving adequate notice, depending on what is required by law.

3. Standby Guardianship

A Standby Guardianship is different than a regular or Emergency Minor Guardianship. A Standby Guardianship involves a guardian that is nominated by a parent for their minor child to step in when no parent is willing or able to perform the parenting functions. Please see the following article for a more in-depth explanation of Standby Guardianships: What Is a Standby Guardian, and How Do I Appoint One for My Minor Child?

Bonus: What to do if you need an immediate order to protect a minor?

Whether you’re filing a regular Minor Guardianship Petition or an Emergency Minor Guardianship Petition, there may be a situation in which you need an immediate order from the court making you the emergency guardian. Often there is a need to do this before a parent can be notified. Common scenarios include when the children have been recently harmed or are in danger of further harm, or when there is concern a parent will abscond with a minor child.

Fortunately, under RCW 11.130.225(4), a petitioner may file a Motion for Immediate Order (Ex Parte). Ex parte is a Latin legal term meaning from one side only. In this context it means that the judicial officer, whether a judge or commissioner, will review the motion and any supporting documents, and make a ruling without first giving the other party notice. The motions can be heard and a decision made the same day. Depending on the order of the court, the children could potentially be removed the same day if the court finds that the minor’s health, safety, or welfare will be substantially harmed before a hearing.

Conclusion