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Guardianship - What is it?

Sometimes, no matter how much parents love their child, it is better for the child to live with someone else. In Arizona, when the court gives custody of a child under the age of 18, or the child's property, or both, to an adult relative or other caregiver, this is called a legal guardianship. The guardian then has the authority to make decisions for the young child that a parent would normally make, and also assumes certain duties and obligations regarding the child's care and control.

In Arizona, a guardian can be appointed to make personal, health care and living arrangement decisions for a minor or an incapacitated adult. While the processes are similar, there are important differences between guardianship for minors and for adults. Here we are dealing only with guardianship for minors.

To be appointed as a Guardian requires a court proceeding in which a judge appoints someone who is not the parent:

custody of a child, or
the power to manage the child's property, or
both.

The child, called "the minor" or "the ward," is any person under 18 years of age.

There are 2 types of guardianship. Most cases go to probate court. But if the child is a dependent or a ward of the juvenile court, guardianship must be decided in juvenile court.

If Child Protective Services (CPS) is involved - that is, if the child is a dependent or ward of the juvenile court (Child and Family Services) - go to Juvenile Court Guardianship.
If CPS is not involved, see below.

IF THERE'S AN EMERGENCY - if the child needs immediate medical treatment, for example, or needs to be enrolled in school - you can ask the court to appoint a "TEMPORARY GUARDIAN." For information about how to do that, see our FAQ's.

Permanency in Guardianship

Title 8 of the Arizona Revised Statutes discusses permanent guardianships for children. A guardian can be appointed for a child if all of the following guidelines have been met and having a permanent guardian is in the child's best interests:

The child has been adjudicated a dependent child.
The child has been in the custody of the potential permanent guardian for at least nine months. This can be waived by the court.
Reasonable efforts to reunite the child and parents have been made by the division or agency which has care of the child. This may be waived if the parent is unwilling or unable to properly care for the child.
The chances for the child to be adopted are remote or terminating parental rights would not be in the child's best interests.

Anyone can be considered for appointment as a permanent guardian, including relatives and foster parents. Children 14 or older can even nominate someone they want to be their guardian. The court will give primary consideration to the individual who will best meet the child's physical, mental, and emotional needs. If the child is of Native American descent, the guidelines laid out in the Indian Child Welfare Act must also be followed insuring that tribal concerns are addressed.

It is important to note that permanent guardianship does not sever parental rights; it only removes the parents' legal custody of the child. This also does not affect a child's inheritance rights from the parents. The court may also add provisions to the guardianship requiring visitation for the natural parents, siblings, or other relatives depending on what is in the child's best interests.

A permanent guardianship can be revoked. The child, one of the child's parents, or any party who was involved in the dependency proceeding can file a petition with the court to revoke the permanent guardianship. There must be a significant change in the circumstances of the dependency in order to file such a petition. This can include the parent being able and willing to properly care for the child or the permanent guardian not being able to properly care for the child. Regardless of the circumstances, the court will appoint a guardian ad litem for the child while the revocation petition proceeds in court. The guardianship will be revoked only if there is clear and convincing evidence that circumstances have changed and that the revocation will be in the best interest of the child.

Subsidy in Guardianship

Guardians can also be given authority to oversee a child's finances and may be entitled to reasonable compensation for room, board, and the child's clothing from biological parents or the state. The Arizona Department of Economic Security (DES) established an ongoing program of subsidized permanent guardianship. There are several items that a guardian must do to qualify to receive these subsidies.

One of the tasks is to apply for all benefits the child can receive from other state and federal programs first. Then DES will determine what the appropriate subsidy is and reduce that amount by how much is being received from the other programs. DES will conduct annual reviews to determine if the subsidy amount needs to be changed and whether the guardian is still eligible to receive the subsidy.

A permanent guardian who is receiving a DES subsidy must cooperate with DES during the annual reviews. A guardian must also notify DES in writing if other federal or state benefits change, the guardian moves, or something else changes that would discontinue the subsidy. Discontinuation can result from the permanent guardianship being terminated, the child's death, moving out of the guardian's home, or the child turning 18. The subsidy can be extended until the child turns 22 if they have not received a high school diploma or certificate of equivalency.

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