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Typical social and legal expectations exist for parents to be responsible for providing food, clothing, shelter, and other basic needs for their children. But sometimes parents are not able to provide these necessities and it is in the child’s best interests to have a legal guardian appointed to them by the Courts. Petitioning and obtaining guardianship of minors can be complicated and time consuming and it is wise to consult an experienced attorney to help you get through this legal process.

N.C.G.S. 35A-1221 states that any person or corporation, including a State or local human service agency, can apply to be appointed guardian of a minor or a minor’s estate. In the case where the biological parents are unfit to care for the child, the most likely person to petition for guardianship is a close relative or close family friend. Anyone with a bad criminal record will likely be rejected as a guardian.

Guardianship applications must be filed with the Clerk of Superior Court in the county in which the child resides. There will be fees associated with applying for guardianship and you must indicate exactly which type of guardianship you are seeking:

  1. Guardianship of the child’s basic care and well-being,
  2. Guardianship of the child’s estate and financial decisions, or
  3. General guardianship which will place the guardian in charge of the child’s personal well-being and the child’s estate.

Once the application for guardianship of a minor has been filed, N.C.G.S. 35A-1222 requires that all interested parties be notified of the time, date, and place of the hearing so that they have the opportunity to be heard and possibly contest the guardianship petition. This notice is typically sent to any parent, guardian, or legal custodian of the minor. They have to be properly served by the North Carolina Rules of Civil Procedure. The opinions of the minor’s parents are given substantial weight in determining who should be appointed guardian of the minor if the biological parent has not willfully abandoned the child. At the end of the day, the Clerk will determine guardianship based on the best interests of the child.

Guardianship is best described as one step less than adoption. Unlike adoption, the parental rights of the child’s parents do not have to be eliminated to establish guardianship. Also, unlike adoption, the guardianship will terminate once the child turns 18 years old. Everyone’s circumstances are different and sometimes it is hard to decide if adoption or guardianship is in the child’s best interests. There are key legal differences in the two and you should consult with an experienced professional to determine what is in the best interests of the child. If you are concerned about the care and well-being of a minor and would like to know more about guardianship and what legal rights and responsibilities go along with this legal process, call Ludlum Law Firm and set up a consultation to speak with one of our experienced attorneys to assist you in this important decision and legal process.

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