Guardianship

Sometimes a child’s parents cannot adequately provide for their child, and it becomes necessary to appoint a guardian to act in the parents’ stead. Hawaii Revised Statutes Section 560:5-201 et seq. outlines the procedures and legal standards the Family Court follows when determining whether to appoint a guardian on behalf of a child. A guardian can be appointed by a “will or other signed writing” that identifies the guardian and enumerates his/her powers upon the death or incapacity of the parent(s).

A guardian can also be assigned by judicial appointment upon the filing of a “petition for appointment of a guardian” by a person interested in the welfare of the child. A guardian will be appointed if: a) the parents consent to the appointment, b) the parents’ rights in the child have been terminated, or c) the parents are unwilling or unable to exercise their parental rights. Be advised that if the subject child has attained fourteen (14) years of age, he or she will have a say in who becomes his or her guardian.

Unlike adoptions, guardianships can be terminated upon petition by an interested person. For example, a common scenario is one where a guardian is appointed because the child’s parents are incapable of caring for their child, but in the ensuing years, one or both parents rehabilitate themselves (e.g., financially, medically, or psychologically) and then petition to terminate the guardianship and restore their parental rights.

Whether you are interested in petitioning the court to become a guardian or you are a parent contesting the appointment of a guardian, our strong advice is to hire an attorney with substantial experience litigating before the Family Court.