A guardianship proceeding is a probate court action in which one person, known as the guardian, is appointed to care for another person called the “ward.” A ward can be an adult or a child. The guardianship can be for the ward’s “person,” which enables the guardian to make such things as medical decisions, and/or for the ward’s “estate” which enables the guardian to make financial decisions for the ward.
Cases where a biological parent or adoptive parent asks a third person to be the guardian over their child are particularly difficult. Under New Hampshire law, the biological or adoptive parent is presumed to be the child’s natural guardian. Unless a third person has the consent of the parent to become the child’s guardian, it can be very difficult for a third person to become the guardian over another person’s child.
A recent New Hampshire Supreme Court case In re: Matthew L. held that where the biological or adoptive parent seeks to terminate the guardianship by a third person over their child, it the guardian and not the parent who must show, by a preponderance of the evidence that the guardianship is still needed and that termination of the guardianship would adversely affect the minor’s well being.
Matthew L. was a noteworthy case in that it involved a child conceived during a same sex relationship whereby one of the partners was artificially inseminated. One of the theories not discussed in the Matthew L. case, but what may become an issue in future cases, is the concept of the psychological parent. That is, a person who is not related to the child by blood or adoption, but is nevertheless someone to whom the child identifies with as a parent. If the guardian is the child’s psychological parent, does that effect the evidence the guardian needs to defeat a request by the biological or adoptive parent to terminate a guardianship? While the concept of the psychological parent is not recognized by statute in New Hampshire, courts will undoubtedly be asked to confront his issue.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].