It has become increasingly frequent to see the biological parents of a minor child to grant guardianship rights over their child to a third party. Often times this occurs because the biological parents are unable to care for the child due to pending homelessness, drug problems, or criminal actions. In some cases, the guardianship is only intended to last a few months. In other cases, the guardianship lasts for many years.
At some point in time, if the biological parents may resolve his/her issues and wish to resume parenting responsibilities. Problems occur if the child has bonded with the guardian so that separation of the child from the guardian could harm the child, or if the guardian disagrees with the biological parent’s belief that he/she is ready to resume his/her parental obligations. In the recent Supreme Court decision of In re: Raven, G. (decided May 14, 2013), the Court further clarified how minor guardianships can be terminated.
In Raven, G., the Supreme Court stated that guardianships over minors can be established with or without the biological parent’s consent. If the guardianship is established with the consent of the biological parent, the person who is opposing the termination of the guardianship must prove that the guardianship is still necessary for the essential physical and safety needs of the minor and that terminating the guardianship will adversely affect the minor child’s psychological well being. In other words, if the guardian opposes the biological parent’s request to terminate the guardianship, the guardian has the burden of showing that the continuation of the guardianship is necessary. The guardian bears the burden of proof by “clear and convincing evidence” which is a very formidable hurdle to overcome.
If the guardianship over the minor was established without the prior consent of the biological parent, the biological parent has the burden of showing by a preponderance of the evidence that the guardianship is no longer necessary and a termination of the guardianship will not adversely affect the minor’s child’s well being.
In summation, New Hampshire recognizes that a biological parent is preemptively the natural guardian of their minor children. Guardianships over minor children, which are granted against the wishes of the biological parent, are very difficult to obtain, but easier to terminate. If the biological parent consents to a guardianship over his/her child, the law gives the biological parent the right to terminate that guardianship, and once a request for the termination of the guardianship is made, it is very difficult for the guardian to continue that guardianship against the wishes of the biological parent.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].