A high-level overview of the court and legal process
It’s an unfortunate but inescapable reality: Sometimes an Oregon child needs a legal guardian to look after their well-being. How to get guardianship of a child in Oregon has a defined legal process that a person follows in order to become a court-appointed guardian for a child.
We’re going to walk through some of the high-level parts of this process. Naturally, every circumstance or case is different, and best discussed with an attorney.
Do you need to discuss getting guardianship of a child in Oregon?
Who can become a child’s legal guardian in Oregon?
The Oregon Judicial Branch’s Family Law Program says that someone may become a court-appointed legal guardian to a child as follows:
“Anyone who is interested in the welfare of the incapacitated person or child may be appointed as guardian and/or conservator. Prospective guardians and/or conservators must tell the court whether or not they have been convicted of a crime, have filed for or received protection under the bankruptcy laws, or have had a license revoked or canceled that was required by the laws of any state for the practice of a profession or occupation. Prospective guardians must also sign a consent stating that they are willing to serve.”
Essentially, no one can self-declare themselves as a guardian. Nor can they be appointed as a guardian without their signed consent to serve as a guardian.
Within those requirements, a person may then file for guardianship with the Oregon court in the county where the minor child resides or is present in at the time.
When might a child need a court-appointed guardian in Oregon?
As the court specifies:
”A guardian is someone who is appointed by a court to protect and care for the health and well-being of an incapacitated person, or a minor child.”
The most common cases for guardianship involve a minor or minors whose parents are not able to care for and/or provide for them. It also encompasses circumstances when the parents agree that another person needs to provide care and decision-making for and in the interests of the child.
Circumstances when a guardian is necessary range widely. Examples might include the death, incapacitation, or deportation of one of both parents; instances of neglect and/or abuse; or other situations where a child is not being provided for or looked after as they need to be as a minor.
What does the process of becoming a guardian look like?
At a high level, here’s what the process of becoming a guardian often looks like in the Oregon court system:
Is guardianship necessary and the right course of action?
Not every situation requires guardianship, and other legal instruments or roles can be more appropriate.
Identifying the correct Oregon county court
Guardianship petitions must be filed with the county court in the Oregon county where the child is physically present or where they legally or currently reside.
Petitioning the court
A typical guardianship petition in Oregon includes details such as the child’s condition; family, medical, financial, and/or other relevant circumstances, the necessity for appointing a legal guardian instead of other remedies, and information about the person seeking to be appointed as guardian.
Notice served to relevant parties
Any parties with an interest in the child’s well-being must be served notice of the guardianship petition. Parties might include but are not limited too:
- The child’s biological and/or adopted parents
- The minor child, if they are at least 14 years old
- Other parties with an interest in the petition or guardianship (it’s on a case-by-case basis, but it’s important to know that part of applying for guardianship is determining the right people to serve notice to)
The other parties might include but are not limited to:
- A child’s caretaker(s)
- If the parents are deceased, then living close relatives must be served
- If the child is enrolled in Oregon Health Plan, the Oregon Health Authority must be served
- If the child receives government assistance, the Oregon Department of Human Services must be served
Legal requirements also determine who may serve the documents, and how they are to do so, such as:
“The Petition, notice, and a blank objection form must be served. Service must be done by someone who is not a party to the case, is at least 18 years old, and lives in the same state as the person being served. The person who serves the papers must sign a statement under oath saying when, where, and to whom they gave the documents.”
Interested parties have the legal right to object to the petition or bring other material or alternatives to the court. If notice is not properly served, odds are the court will deny the petition and the person applying will not be appointed guardian.
The court appoints a court visitor
An appointed court visitor is responsible for gathering information, meeting with the minor child, learning about their condition and circumstances, and bringing detailed findings to the attention of the court.
The court holds a hearing
All involved parties will be given notice of a hearing about the guardianship petition, and the parties will need to attend. At the hearing, the court will review the petition and evidence, and may discuss the matter directly with attending parties.
At its core, the hearing process is where the court determines the current welfare of the child, if they need a guardian, and if they do, if the current applicant is the right person to fulfill the role.
The court approves or denies the petition
If the court denies the petition, the applicant will not be appointed guardian, and the child’s circumstances will remain as they were without change from the court.
If the court approves the petition, the applicant or other named guardian can consent and be appointed as the minor child’s guardian.
The guardian fulfills their duties and reports to the court
The type, duration, and duties of a guardian vary by circumstances and the court’s decisions. In general, as long as the guardianship is active, the guardian has a legal responsibility to provide decision-making as well as attend to the child’s needs and well-being.
Guardianships typically include a regular reporting to the court about the child and how they are doing. Usually this reporting is done on an annual basis. In the event of life changes, such as moving to a new residence, the guardian may have to provide additional updates so the court has current information about the child and guardian.
Throughout the guardianship, the court retains oversight and authority, the court can cancel the guardianship or remove a guardian when necessary.
What are the three types of guardianship in Oregon?
Oregon law has established 3 main types of guardianship:
- Temporary Guardianship: Lasts 30 days, used mainly in emergency situations
- Standard Guardianship: Long-term authority with annual reporting requirements
- Limited Guardianship: A guardianship with a specific end date or limitations on Guardian’s powers
To find out more, check out our guide to the 3 types of legal guardianship in Oregon
Are the alternatives to guardianship for a child in Oregon?
While guardianship is an important legal tool to provide for the care, decision-making, and well-being of a minor child in Oregon, it is not the only option for adults who want to tend to the interests of a child. Upon discussion with your attorney, there are alternatives to consider, and they may not require a court hearing.
If guardianship might not be necessary, two other options might be preferable:
- Relative Caregiver Affidavit: When parents are missing or no longer around, a caregiver may be able to make legal decisions in the child’s interests until the parents have returned.
- Delegation of Parental Powers: The parents would sign and consent to another person for the child to live with, and for that person to care for the child and make decisions in their interests
When does a guardianship end?
The termination of a guardianship doesn’t have a one-size-fits-all answer. Broadly speaking, an emergency, or Temporary Guardianship, lasts 30 days. The court may set a specific end date on a Limited Guardianship.
A Standard Guardianship might not have a fixed end date, but the guardianship may be evaluated annually.
Courts can also end a guardianship when the arrangement is no longer needed. A child reaching adulthood may also no longer be subject to guardianship.
What legal powers, rights, and responsibilities does a legal guardian have in Oregon?
Generally speaking, Oregon law grants certain powers and requires certain duties from a legal guardian. Here are the general powers and duties of guardian, according to ORS 125.315:
A guardian has the following powers and duties:
- (a)Except to the extent of any limitation under the order of appointment, the guardian has custody of the protected person and may establish the protected person’s place of abode within or without this state.
- (b)The guardian shall provide for the care, comfort and maintenance of the protected person and, whenever appropriate, shall arrange for training and education of the protected person. Without regard to custodial rights of the protected person, the guardian shall take reasonable care of the person’s clothing, furniture and other personal effects unless a conservator has been appointed for the protected person.
- (c)Subject to the provisions of ORS 127.505 (Definitions for ORS 127.505 to 127.660) to 127.660 (Short title) and subsection (3) of this section, the guardian may consent, refuse consent or withhold or withdraw consent to health care, as defined in ORS 127.505 (Definitions for ORS 127.505 to 127.660), for the protected person. A guardian is not liable solely by reason of consent under this paragraph for any injury to the protected person resulting from the negligence or acts of third persons.
Guardianship is an important legal role that has crucial duties to fulfill and a specific process to follow
When a child needs a guardian, it’s crucial that the right person steps up. However, the responsibilities and duties inherent in that role of guardian have to be granted by a court. When you observe a child in your life who may need the protection of a legal guardian, there is a process to follow in order to serve the best interests of the minor child.
Let’s make sure that process happens the right way:
