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Guardianship Cases in Boston and Massachusetts

Guardianship Cases in Massachusetts – Guardianship of a Minor

Boston Divorce Lawyers – Expert Advice

In accordance with M.G.L.A. c. 201 §2, the court may appoint a guardian for a minor child who is under the age of fourteen after at least seven days notice to the living parents. If the child is above that age he may nominate his own guardian. M.G.L.A. c. 201 §2. If a person is appointed as a guardian, they serve in that capacity until they are discharged by the court or until the minor reaches the age of eighteen. M.G.L.A. c. 201 §4. A third way for the guardianship to be terminated is if the minor marries before obtaining the age of eighteen. M.G.L.A. c. 201 §5.

The person appointed as guardian has the care and management of the minor’s estate, but not necessarily the exclusive care and custody of the minor. There are several situations when the guardian may be given exclusive care and custody of the minor child, which include:

a) when the court so orders upon the written consent of the parent, or

b) when the court after notice to the parents or surviving parent, finds the parents or parent unfit for custody, or

c) when the court find one parent unfit and the other parent files a written consent to the guardian having custody. M.G.L.A. c. 201 §5.

There are several factors the court will consider when determining whether a parent is unfit (and thus allow a guardianship to a third person other than either parent) and some of the factors are: 1) whether the child has been abandoned; 2) the child or another member of the immediate family has been abused or neglected by the acts or omissions of one or both parents;  3) a court has transferred custody of the child from the child’s parents to the Department of Social Services;  4) the child is four years of age or older and the court has transferred custody of the child from the child’s parents to the Department of Social Services and custody has remained with the department for at least twelve of the last fifteen consecutive months;  5) the child is younger than four years of age and the court has transferred custody of the child from the child’s parents or the Department of Social Services and custody has remained with the department for at least six of the last twelve consecutive months;  6) the parent, without an excuse, fails to provide proper care of custody for the child and there is reasonable expectation that the parent will not be able to provide proper care or custody within a reasonable time considering the age of the child and there are several other factors the court can consider. M.G.L.A. c. 210 §3.

Grandparents are able to apply for guardianship over the objections of a parent that claims they are fit; however, the court needs proof as to why the parent is unfit. The court cannot base its decision solely on unfounded claims made by the grandparent.  Given the Constitutional protections given to parents, the threshold for the required proof is high.

It is also important to hear from the child when the court is making a determination regarding whether someone should be appointed a guardian. The court will hear from the potential guardian, the parents, as well as the child. The child is able to hire counsel if they can afford one for the care and protection proceeding.  If the child cannot afford one, the court can appoint counsel for the child. (See M.G.L.A. c. 201 §14).  However, before hearing from any party to the guardianship case, the court first has to ensure that they have jurisdiction over the case. If there is another state that has possible jurisdiction, Massachusetts may have to defer to that state. (M.G.L.A. c. 209B). If there already has been a guardianship appointed from another state and the parties move to Massachusetts, Massachusetts will give full faith and credit to the guardianship appointed in another state. (See Guardianship of Enos, 41 Mass. App. Ct. 360 (1996)).

Our offices are located in Boston in the heart of the financial district and in New Bedford on the South Coast.  Contact us today for a free consultation about a guardianship case.

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