Introduction to infant guardianships
This article answers some common questions about guardianships for children, also called infant guardianships, in West Virginia. If you are not the parent of a child and you want to get custody, a guardianship is one way to do it. However, a guardianship is not the only way to get custody of a child. You may need to talk with a lawyer to make sure a guardianship is the best tool for your situation.
If you are interested in adopting a child, read the article on Adoption for more information.
What is infant guardianship under West Virginia law?
Infant guardianship is when someone other than a child’s birth parent asks a Judge to give them custody of the child. A guardianship gives the guardian the rights and responsibilities of a parent. The guardian is responsible for the child’s well-being, protection, and education. A guardianship will usually remain in place until someone asks the Judge to terminate it or until the child turns 18.
What is the difference between infant guardianship and adoption?
Adoption rewrites history. It is like the child was always a part of their adoptive family. For example, an adopted child gets a new birth certificate with their adoptive parents listed on it. A guardianship does not rewrite history. It just transfers the rights and responsibilities from the birth parents to the new guardians. Other differences are:
- How long it lasts: Adoptions cannot be undone. They are permanent. Guardianships can last a long time, but they can be set aside by the Judge later if the reasons that led to the guardianship are fixed. For example, if a child’s parents have received drug treatment, a Judge may set aside the guardianship and return the rights to the parents.
- Where you file: In West Virginia, you can ask for an infant guardianship in Family Court or in Circuit Court. You can only ask for adoptions in Circuit Court.
- When you should file: If you want custody of a child who does not live with you because you believe the child is not safe, you can ask for a guardianship. If you want to adopt a child who is staying with you, you must wait until the child has been with you six months. You can also file for a guardianship while an adoption is pending.
If you have questions about Child Abuse and Neglect cases, read the article on Child Abuse and Neglect Under West Virginia Law.
You can also read Child Abuse and Neglect: How can relatives (other than the parents) become involved to help the child? for information about how relatives can help when children are in abuse and neglect cases.
Do I have to be related to the child to be a guardian?
No. In some situations, such as when there are allegations of abuse and neglect, the Department of Health and Human Resources (DHHR) may prefer that children under the age of 12 years old are put in guardianships with relatives. Not all guardianships involve the DHHR, though.
Is there more than one kind of guardian in West Virginia?
There are two different kinds of “guardians” under West Virginia law. The first is the guardian of a child, which is the topic of this article. The second is the guardian of an adult. Guardians of adults are appointed by a Judge when people cannot make decisions about their personal affairs. For more information about Adult Guardianship, see this article on Adult Guardianship/Conservatorship: What Do I Need to Know?
Who can become a guardian?
A child’s natural parents are his or her guardians. When parents don’t take care of the child, a Judge may appoint someone else to be the child’s guardian to look out for the child. Any person who has a relationship with the child and who is concerned for the child's well-being can file a petition with the Judge to be appointed as guardian of a child. The Judge cannot appoint a parent or other person whose rights have been terminated. A guardianship will not be put in place if the custody of the child is an issue in another court case.
How do I become a guardian?
You must file a petition in either Family Court or Circuit Court. The Judge will look at the facts and decide whether or not to appoint you as the child’s guardian.
When will the court appoint a guardian for the child?
The Judge may appoint a guardian for a child if the court finds that it is in the child’s best interest and either:
- The parents’ agree;
- The parents’ rights have been terminated;
- The parents are unwilling or unable to exercise their rights (for example, when the parent is in prison);
- If the parents have abandoned the child for more than six months; or
- If there are rare circumstances that would result in serious problems for the child.
What is abandonment?
Abandonment is when the birth parent acts as if they will no longer care for the child. West Virginia law says that a parent has legally abandoned a child if that parent
- Knows where the child lives, for six months or longer;
- Does not support the child financially, and
- Does not visit or stay in touch with the child.
Does the child’s parent have to agree to a guardianship?
No. One way to get a guardianship is to have the parents agree to the appointment of another guardian. This is called consent. If the parents will agree to the guardianship, it is best to get this in writing. If the parents do not consent, the Judge can still appoint a guardian for the child.
Are infant guardianships permanent?
No. An infant guardianship is not permanent because the guardianship can be removed by the Judge. However, an infant guardianship can last for a long time, even until a child turns 18. Guardianships can also be as little as six months, if the Judge believes that such a short time is all that is necessary to keep the child safe and serve the child’s best interests.
Does a guardianship mean that the child’s parents lose their rights?
No. Guardianship does not end a parent’s rights to their child forever. Instead, allows someone else to make decisions regarding the child’s care and well-being during the guardianship.
Do I have to be a foster parent to get infant guardianship?
No. You do not have to be a foster parent to file for guardianship, but you can be. Fostering a child is a more temporary arrangement that is begun by the state’s involvement with the child’s family. When a child is in foster care, the state has legal guardianship over the child. Therefore, if a child cannot be reunited with his or her family, the foster parent can petition a Judge to take over legal guardianship from the state instead of the child’s parents.
Can a parent have a guardianship removed?
Yes. Parents can ask the Judge to remove a guardianship. The parent has to show the Judge that there has been a significant change in their circumstances and that removing the guardianship is in the best interests of the child.
Can I receive financial benefits to help take care of the child?
Yes. A guardian assumes financial responsibility for the child during the guardianship. However, you can apply for some forms of financial assistance when a child is in your home.
Guardians can apply for possible financial support through West Virginia’s WV Works program.
If a Judge grants a guardianship after a child is in the care of the Department of Health and Human Resources, you can apply for financial help with the guardianship, called a subsidized guardianship. You may be eligible to receive a monthly check, Medicaid, and a one-time payment of up to $2,000 to help with legal fees. In order to get this, you need to be certified as a foster parent. In order to become a foster parent, contact your local Department of Health and Human Resources office. For more information about benefits that may be available, see this article.
Can I represent myself in an infant guardianship case?
Yes. The Supreme Court of Appeals of West Virginia has forms online that you can use to file a petition for a guardianship.
Whether you are a parent or a potential legal guardian, you should try to discuss legal guardianship with a lawyer to understand your choices and your rights. You can apply for help from Legal Aid or contact other legal resources for more information.