Guardianship &
Transfers of Guardianship Terminations

Termination of Juvenile Court Guardianship

• for guardianship granted prior to 2000, then guardianship is revocable at will of parent, CA or Court may ORDER referral to DFACS

• for guardianship granted after 2000 & parental relinquishment states guardian may file objections, the guardian may file objections to the dissolution of the guardianship, then notice to parties & evidentiary hearing, CA attorney appointed to investigate and advocate for child's best interest, may ask for evaluation (psych or parenting assessment, CASA)

• the Court determines if the dissolution or continuation of the guardianship is in the best interest of the child

• CA may file objections to dissolution of guardianship -- undecided

Transfer from Probate Court occurs when

• guardianship granted in Probate Court,

• parent files to revoke the guardianship,

• if the guardian files objections to the revocation then Probate Court shall transfer the case to Juvenile Court for notice and evidentiary hearing,

• CA attorney appointed to investigate and advocate for child's best interest, may ask for evaluation (psych or parenting assessment, CASA)

• the Court determines if the dissolution or continuation of the guardianship is in the best interest of the child

• CA may file objections to dissolution of guardianship

• Following Juvenile Court determination, case must be transferred back to Probate Court

Summary of Guardianship Code

1. Jurisdiction of Other Courts and Agencies over Guardianships and Conservatorships (15-9-30 provides for probate court jurisdiction, except…; 15-11-30.1(a) grants jurisdiction to juvenile courts)

   1. Jurisdiction of juvenile court: 15-11-2(2)

   2. Definition of deprived child: 15-11-2(8)

   3. Definition of Status offenses: 15-11-2(11)

2. Guardianship Code Definitions -- 29-1-1

   1. Guardian: 29-1-1(7)

   2. Types of guardians: (those that serve for minors listed in 29-2-1)

      1. Natural: 2-1-1(12); see 29-2-3

      2. Permanent: 29-1-1(14); see 29-2-14

      3. Temporary: 29-1-1(21); see29-2-5

      4. Minor or adult: temp substitute guardian: 29-1-1(23); see 29-2-50, 29-4-60

      5. GAL: 29-1-1(8), see 29-9-2

   3. adults and minors

      1. minor: 29-1-1(11)

      2. emancipated minor: 19-7-1(b) (birth of child to minor doesn't automatically emancipate minor -- Hicks v. Fulton Co DFACS, 155 Ga. App. 1, 250 SE2d 254 at 255 (1980)

3. Domicile

   1. Petition for appointment of permanent guardian or conservator must be filed either in probate court of county in which minor is found OR in which proposed permanent guardian or conservator is domiciled. 29-2-14, 29-3-6

   2. Domicile of minor is tied to domicile of minor's parents or whoever else has custody of minor. (19-2-4(a)?). If parental custody has been transferred to 3d party, either voluntarily or by court order, domicile of party who has legal custody is domicile of minor. 19-2-4(b)/(29-2-4(b)?).

   3. The guardian of a minor ward must obtain probate court's permission to change domicile of that minor to minor's place of dwelling. (29-4-21(a)). Before permission is granted, court must consider effect of change of domicile in terms of tax ramifications and a modification of the succession and inheritance rights of the ward and other parties. (29-2-22(b), 29-4-23(b)).

4. Parent-Child Relationship

   1. Guardian stands in place of minor's parents and is authorized to make for the minor most of the decisions that are usually consigned to the minor's parents. (9-2-21(a); 19-7-2 states the duty of a parent. Guardian automatically gets power to establish child's dwelling place within GA, consent to medical treatment for child, and consent to child's adoption; may also petition court for granting of extraordinary powers, such as power to move minor outside state or to consent to marriage of minor (29-2-22(b).)

   2. Emancipation: a minor is someone under 18 and who isn't emancipated. (29-1-1(11)); circumstances under which parental power may be lost by parents, thus possibly resulting in an emancipation of the child -- includes neglect or abandonment and cruel treatment (19-7-1(b)).

   3. Parents parental rights may be terminated by juvenile court if parent 1) consents in writing; 2) fails to comply with an order to support child for 12 months or more; 3) abandons the child; or 4) if court finds parental misconduct or inability. (15-11-94(b); see also 15-11-93 and 15-11-28(a)(2)(C).) Guardianship rights are a subset of parental rights and generally exist in the parent who has custody of child. (i.e., right to consent to medical treatment or to enroll in educational institution (19-9-6(4) and 29-2-22).) Custody matters are determined by superior and juvenile courts rather than probate courts; custody may be: physical, legal, or both (19-2-22).

   4. Situations relating to custody issues:

      1. If parents rights terminated and there's no other parent whose parental rights remain intact, the court may place the child with a relative or may commit child to custody of DHR or child-placement agency (15-11-103(a)). This custodian has "authority to consent to adoption of child, child's marriage, child's enlistment in armed forces, and surgical and other medical treatment for child." (15-11-103(d)).

      2. When child's welfare is threatened if child remains in parents' custody. Court may remove child temporarily or permanently from child's home and order child placed in custody of individual or institution. May occur if court finds child has been abandoned or harmed by parent's misconduct or inability to care for the child. (see 15-11-55, 19-7-4, 15-11-30.1).

      3. Parent may voluntarily contract to release his or her parental rights to and the custody of the child to a third party. (19-7-1(b)(1)). Stills v. Johnson (GA Sup. Ct.): although parent's choice should be an important factor in determination of who should have custody of child, trial court should use a "best interest of the child" std in determining to whom to award custody.

5. Parents as Natural Guardians

   1. Several types of guardians for minors: natural, testamentary, temporary, standby, and permanent. 29-2-1. Generally, both parents are the "natural guardians" of their minor children. 29-2-3(b). For a child born out of wedlock, the mother is the child's sole natural guardian unless the father legitimates the parent-child relationship. 19-7-25. (Revision repealed former 29-4-6 which provided as follows: "The judge of the probate court may appoint a guardian for the person and property of a child born out of wedlock in all cases in which he deems it necessary." Biological father may not qualify as child's "parent" under definition in 29-1-1.

   2. Custodian of minor has rights and responsibilities for major decisions including child's education, health care, and religious training. 19-9-6(2) and (3). Guardian has right to: 1) serve as child's natural guardian even if that parent has a conflict of interest with the minor (29-2-2(b)(2) says otherwise, but natural guardians aren't covered by this section because they're guardians by operation of law); 2) veto appt of temp guardian for minor or have a say in selection of individual who will serve as temp guardian (29-2-6(d)); 3) petition to terminate temp guardianship (29-2-8); 4) receive notice if minor's temp guardian petitions to have powers granted that are above and beyond powers that are normally granted when guardianship is established (29-2-22(c)); 5) designate who will serve as child's permanent guardian (29-2-14; 29-2-4(b)); 6) receive and use minor's personal property without being appointed conservator when total value of minor's property doesn't exceed $15,000 (29-3-1(b)); 7) release debtor of minor and compromise minor's debt w/o court approval and w/o being appointed conservator if amount of debt doesn't exceed $15,000 (29-3-2); 8) compromise minor's claim that doesn't exceed $15,000 w/o court approval and w/o being appointed conservator (29-3-3(c)); 9) seek court approval for settlement of certain of the minor's claims w/o being appointed conservator (29-3-3(f)); 10) in probate court proceedings involving the minor, represent minor's interests in the place of a GAL (29-9-2(b), 53-11-2(a); see also GPCSF 16); 11) receive Worker's Comp awards payable to the minor in amounts of $300 or less w/o being appointed conservator (34-9-225(b)); 12)receive and use amounts of less than $15,000 payable to minor as result of an action for wrongful death of minor's parent w/o being appointed conservator (51-4-2(d)(1)); and 13) receive for the minor the accounting of a trustee of any trust of which the minor is a beneficiary (53-12-190(b)(2)).

   3. Unclear under current law whether a court can find that a natural guardian has forfeited his or her status as natural guardian by abandonment or cruel treatment of the minor child. McCallum v. Bryant, 212 Ga. 348 (1956) -- forfeited status as natural guardian when abandoned child; 19-7-1(b): cruel treatment of child is another way a parent can lose parental power. Logical extension of case: can find that either parent ahs forfeited status as natural guardian by abandoning child and therefore a permanent guardian should be appointed. However, more prudent course of action before appointing a permanent guardian would be for a superior or juvenile court to engage in a formal TPR (as set forth in Ch. 11 of Title 15) or deprivation of parental custody (as set forth in 19-7-4).

6. Testamentary guardians -- guardians who are nominated in a parent's will for minor children (OCGA 29-2-4 allows for nomination to happen). (Parent defined in OCGA 29-1-1(13); minor defined in OCGA 29-1-1(11)).

   1. If there is no other living parent, OCGA 29-2-4(b) requires the probate judge to issue letters of guardianship to the nominee w/o notice or hearing provided that individual is willing to serve. The parent's nominee is to become the testamentary guardian without any interference or questioning by the probate court.

   2. The state, as parens patriae, retains its common law right to protect a child's welfare; state may still intervene if testamentary guardian would endanger the welfare of the child. Harper v. Ballensinger, 226 Ga. 828, 177 SE2d 693 (1970).

7. Temporary Guardians -- Once appointed, a temporary guardian steps into shoes and exercises all powers of minor's natural guardian. (OCGA 29-2-7(a)).

   1. Times when minor's living parent(s) are not able to act as minor's natural guardians: 1) when single parent of minor has been incarcerated or institutionalized for drug or alcohol treatment or otherwise rendered incapable of acting in parental role; 2) when single parent or both parents are in military and have been called away to active duty; 3) when parent(s) don't live in US but have sent child to live with friend or relative; 4) when family has begun relocating but parents would like to let minor remain in his or her school for rest of academic year; or 5) when parent has disappeared but there is no reason to believe parent is dead.

   2. 2005 Guardianship Code gives greater deference to parents' rights by requiring court to issue letters of temp guardianship if both parents consent to petition (OCGA 29-2-6(a)). The only time the need for a guardianship will be at issue is if sole parent or both parents have not consented to petition.

   3. OCGA 29-2-5 allows individual who has physical custody of a minor to file a petition to be appointed the child's temp guardian (29-2-5(a)). Petition is filed in probate court of county in which petitioner is domiciled (29-2-5(b)). 29-2-5(c) -- what petition must contain.

   4. Current stat requires listing of, and consequent notice to, both parents under the theory that a noncustodial parent should still be informed of and have opportunity to object to appt of a temp guardian for child. 29-2-6(b)(1). If parent has not consented, then notice will be given (29-2-6(b)(2); if no objection is filed within required time period, ct may issue letters w/o a hearing (29-2-6(c)).

   5. Court's required response to an objection raised by a parent depends upon: 1) whether objecting parent is minor's natural guardian; and 2) whether objection is one to the establishment of the guardianship or merely one to selection of petitioner as temp guardian. If natural guardian objects to establishment, ct must dismiss petition without any hearing (29-2-6(d)). If other parent objects to establishment, ct will hold a hearing (29-2-6(e)). If either natural guardian or other parent objects to selection, ct will hold a hearing to determine who should serve as temp guardian (29-2-6(d), (e). Minor may express a preference as to who should serve as temp guardian, regardless of age (29-2-6(f)). **Best interest of minor is the controlling standard in any hearing (29-2-6(f)). Probate ct is also allowed to refer matter to juvenile ct to determine whether temp guardianship is in minor's best interest (29-2-6(f)).

   6. Termination of temp guardianship: 29-2-8 (age 18, adoption, emancipation, or death of minor or of temp guardian.

8. Standby guardians

   1. Individual who is appointed by parent or permanent guardian of minor to take over care of minor w/o court appointment when parent's or guardian's phys or mental condition renders him or her incapable of caring for minor.

   2. Standby guardianship designed to come into play only when designating individual has been determined to be "unable to care for a minor due to designating individual's physical or mental condition include a condition created by medical treatment. 29-2-10(a).

   3. Neither the standby guardian nor the parent are required to go through any formal proceeding with the probate ct in order for it to become effective.

   4. Terminates automatically within 120 days of the health determination. Standby guardian may extend it by filing a petition for temp guardianship of minor before end of 120 day period.

9. Permanent guardians -- for minor who has no living parent; includes TPR cases.

   1. Any interested person may file a petition to have a permanent guardian appointed for a minor (29-2-17(a)). Petition is filed in county in which minor is found or county of domicile of proposed permanent guardian. 29-2-14.

   2. What must be included in petition (29-2-17): 1) stmt of facts that support Court's jurisdiction; 2) minor's name, address and DOB; 3) petitioner's name, address and county of domicile, and petitioner's relationship to minor; and if nominated guardian is someone other than petitioner, name, address, domicile, and relationship of nominated guardian; 4) stmt that child has no natural, testamentary, or permanent guardian; 5) if child born out of wedlock, stmt to that effect and name and address of bio F if known; 6) whether parent of minor signed and had notarized a doc that designated who should serve as guardian, along with name and address of designee; 7) names and addresses of other of minor's relatives, included up to 3 adult siblings; if there are no adult siblings, up to 3 of minor's GPs; and if not GPs, up to 3 of child's other nearest relatives (objection rights); 8) whether temp guardian has been appointed or a petition for appt of temp guardian has been filed; and 9) reason that any particulars are lacking in the petition. Individuals to be served must be notified that they're entitled to object either to establishment of permanent guardianship or to petitioner's selection of guardian or both (29-2-17(c)). Std for weighing all matters at issue at hearing is the best interest of the minor (29-2-18).

   3. Bio Father has opportunity to render his relationship with child legitimate and thus negate need for appt of anyone else as child's permanent guardian (if born out of wedlock).

   4. Only an individual may serve as a guardian of a minor; individual must be an adult and may not be a ward or protected person. ("Individual", as opposed to "person", indicates that only natural person, as opposed to an entity such as a state agency or a bank, can serve as minor's guardian.)

   5. 29-2-16 provides that ct shall choose as permanent guardian of minor that individual who will best serve interest of minor; list of preferences given: 1) adult for whom a minor who is 14 or older has expressed as his or her preference (29-2-16(b)); 2) nearest adult relative of minor (53-2-1); 3) other adult relatives of minor; 4) other adults who are related to minor by marriage; 5) adult who was designated in writing by either of minor's natural guardians in a notarized doc or doc witnessed by 2+ persons; or 6) an adult who has provided care or support for minor or with whom minor has lived.

   6. Order granting permanent guardianship -- 29-2-19. Order will include basis on which guardian was selected.

10. Powers, liabilities, and duties of guardians of minors

    1. Rights of a minor in a guardianship: 29-2-20.

    2. Guardian's duties (29-2-21) -- basic power is similar to that of a parent over a child.

    3. Guardian's personal liability (29-2-21(c)).

    4. Guardian's powers -- 29-2-22; includes automatic, or exclusive, powers, and court-authorized powers. See 31-9-1, 31-9-2, 31-20-1, 31-20-3, 31-36-1, 31-36-6, 19-8-5, 19-8-6, 19-8-7, 19-2-4(b), 19-3-37, 19-3-2, 29-3-50, 53-1-20, 53-1-2, 53-2-1.

11. Termination

    1. Termination -- 29-2-30.

    2. Resignation or death of guardian and appt of successor guardian. 29-2-40, 29-2-41, 29-2-51(b), 29-2-52, 29-2-31, 29-2-21.

    3. Sanction, suspension, or removal of guardian and appt of temp substitute guardian. 29-2-42, 29-2-50(a).

    4. Causes of Action Against Guardian. 29-2-43, 29-2-44.

12. Transfer

    1. Transfer of Guardianship within GA. 29-2-60.

    2. Transfer of Foreign Guardianship to GA. 29-2-65, 29-2-66, 29-2-67, 29-2-68.

    3. Transfer of GA Guardianship to Foreign Jurisdiction. 29-2-69 thru 29-2-73.

    4. Foreign Guardian Acting in GA. 29-2-74, 29-2-75, 29-2-76, 29-2-77.

15-11-30.1. Appointment of guardian; transfer of custody and support questions from superior courts.

(a) The court is vested with jurisdiction to appoint a guardian of the person or property of any child and with jurisdiction over proceedings involving any child whose custody is the subject of controversy. Any such appointment shall be made pursuant to the same requirements of notice and hearing as are provided for appointments of guardians of the persons and properties of minors by the judge of the probate court.

(b) Other courts, in handling divorce, alimony, habeas corpus, or other cases involving the custody of a child or children, may transfer the question of the determination of custody, support, or custody and support to the juvenile court for investigation and a report back to the superior court or for investigation and determination. If the referral is for investigation and determination, then the juvenile court shall proceed to handle the matter in the same manner as though the action originated under this article in compliance with the order of the superior court. At any time prior to the determination of any such question, the juvenile court may transfer the jurisdiction of the question back to the referring superior court.

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