Sometimes circumstances dictate that a parent or both parents are temporarily unable or unfit to care for their children. When this happens the child support and/or child custody needs to be entrusted to someone else, usually a family member of family friend.
Contrary to popular belief, the best interests of the child is not the driving factor in a guardianship. The court is only concerned with the inability of a parent to provide the basic necessities and level of care for the children. When the parent or parents are again able to care for their children, even if the guardian is parent of the year and can provide the very best financial care, nurturing and support for the children, the Court only considers whether the parent is again able to resume his or her responsibilities to the child. There is a presumption in the State of Nebraska that it is the best interests of children that they be raised by their natural parents.
When a guardianship has been established, and a parent feels that he or she is capable of caring for his or her children, it is not the parent's burden to show the court that they are able to take care of their children, but the burden is on the guardian to show that the guardianship is still necessary.
Guardianships are often somewhat easily obtained due to the circumstances of the parents who are unable to care for their children. The guardian often emphasizes how well the children are thriving under the care of the guardian and cites the best interests of the children. This is not relevant in a motion to terminate the guardianship. At that point the court is only interested in hearing why the parents cannot care for the child themselves.
Guardianships often are established under emergency circumstances. I often obtain emergency guardianships on the day that I meet with my client.
At such time as the guardianship is no longer needed, I pride myself in developing a transition and a plan which will enable the guardian to continue the relationship with the children to some extent. However, there are also circumstances where the guardian’s further involvement would not be in the child’s best interests and the guardian should no longer be involved.