Parents are the natural guardians for their children. But there are circumstances when a court-appointed guardian is needed to provide for the personal care or protection of the property of a minor or both.
The probate division appoints a guardian who will act in the best interests of the child. The court can appoint either parent, a family member, or an individual who is not related to the child. Two individuals can be appointed to serve as co-guardians. Minors 14 years or older may choose their guardian, subject to court approval. Vermont law also allows parents to name their choice of guardian in their will in case both parents die before a child is 18 years old. The court, however, makes the final decision.
Under Vermont law, a minor up to the age of 18 may have a court-appointed custodial guardian:
With the parents' consent, if
- The parent has a serious or terminal illness
- The parents' physical or mental health prevents them from providing proper care and supervision
- The child's home is not livable as a result of a natural disaster
- The parent is in jail
- The parent is in active military duty
- Parties have agreed to another reason in the best interests of the child
Without the parents' consent, if
- The child has been abandoned or abused by the parent
- The child lacks proper parental care
- The child is without or beyond the control of the parent
The primary duties of a custodial guardian are to give direction, assist with decision-making, and provide a nurturing environment appropriate to the child's age and abilities. A custodial guardian helps the child grow into an independent and responsible person.
The court relies on the guardian to keep it informed about the child's circumstances. The guardian should let the court know of any major changes in the child's life as they occur. A guardian must also file an annual report on the progress and condition of the child. It should describe what actions the guardian has taken on behalf of the child over the course of the year and make recommendations for any needed changes in the guardianship. A guardian cannot be held liable for the actions of the child, but a guardian can be liable for causing harm to the child.
A custodial minor guardianship ends automatically on the child’s 18th birthday. It may end before that date in certain circumstances:
- If all parties are not in agreement, the parents can file a motion to terminate. The guardian receives notice and has 30 days to respond. The court will then schedule the matter for hearing. If a guardian does not think the child should go back to the parent(s), the burden will be on the guardian to show by clear and convincing evidence why the guardianship should continue.
- If the guardianship was initially established without the parents' consent, a motion to terminate can be filed only if there has been a change in circumstances. There must be a hearing in such a case.
Under Vermont law, a minor up to the age of 18 may have a court-appointed financial guardian if the minor is the owner of real or personal property. The financial guardian receives only the powers and duties related to the minor’s property. In general, competent parents or a competent surviving parent can be the financial guardian. If there is no competent or suitable parent, the court appoints a guardian.
A financial guardian must make prudent and informed decisions about the use and disposition of funds and property to best suit the child’s needs. The financial guardian must receive prior authorization from the court before spending or selling a child's assets. A guardian's unauthorized use of the child’s assets may lead to criminal prosecution or charges of contempt of court.
A bond is usually required from petitioner in the case of a financial guardianship.
Financial guardians must file an inventory within 30 days of being appointed. They must also file a financial accounting on the Summary of Account form with the court each year.
A financial minor guardianship ends automatically on the child’s 18th birthday and upon the court’s approval of a final financial accounting filed with the court. It may be terminated earlier, but only by court order.
Although you don't need a lawyer to establish a guardianship for a minor, using a lawyer can simplify the process and help you avoid mistakes.
The first step is to file a petition with the probate division. You can download a copy of the Petition for Guardianship of a Minor here.
Forms are also available at the probate division. The petition requests appointment of a guardian for a person referred to as the "respondent."
You must also file the Statement of the Respondent's Assets and Income, the List of Interested Persons for a Guardianship, along with the filing fee.
If the parents agree to the guardianship, you must also file the Parent's Consent, Guardian's Consent, and the Family Plan.
After you file a petition, the court schedules a hearing and sends notice to interested parties. If the minor is 14 years old or older, the minor must attend the court hearing and sign a written consent agreeing to the guardianship. Both parents of the minor must also receive notice of the hearing. If the parents have already filed written consents, the notice goes through first-class mail. If either parent has not filed a written consent, that parent must receive notice of the petition and hearing by certified mail at least two weeks before the hearing. If the identity or address of a parent is unknown, you can file a written request to ask for a waiver of the notice requirement. The court will schedule a new hearing at the request of a parent who did not receive notice of the initial hearing.
If Only One Parent Consents
If only one parent consents, it is possible that the other parent will fail to appear at the hearing. If so, you do not need to prove the unsuitability of that parent. If the other parent does appear at the hearing and objects, then you must prove that the parent has abandoned or abused the child, that the child does not receive the proper care necessary to the child’s well-being, or that the child is beyond the control of the parent. You must also establish that you are a suitable guardian. You must prove the need for a guardian by clear and convincing evidence, which means that you have to provide evidence that strongly supports your allegations. You should get legal advice, as it can be difficult to prove that a parent is unsuitable.
If Both Parents Object
If you know that neither parent will consent, then you must prove that the parents have abandoned or abused the child, that the child is without proper care necessary for the child’s well-being, or that the minor is beyond the control of the parents. You must also show that you are a suitable guardian. You must prove the need for a guardian by clear and convincing evidence, meaning that you have to provide evidence that strongly supports your allegations about the parents. Because such cases are difficult, you should seek legal help.
Many guardians serve without charging a fee. But depending on both the work involved and the assets of the person under guardianship, a guardian may be paid a reasonable fee. The amount depends on such factors as the time spent on guardianship responsibilities, the results achieved, the guardian's experience, and the complexity of the guardianship. Any fee comes from the estate of the person under guardianship. All guardian fees must be approved by the court.
If you are a guardian, you may request payment of a fee by filing a motion with the probate division. Your motion should describe the nature and extent of your work and include supporting documentation. You should send copies of the motion to all interested persons. You may not receive any fees until all personal and financial annual reports are filed with the court. You cannot pay yourself a fee without the permission of the probate division.