In this article...

Key Takeaways

  • Guardianship is a legal process used when parents cannot care for a child but do not want to surrender them for adoption.
  • Receiving an order of guardianship does not terminate parental rights in Indiana.
  • Parental rights include access to a child's medical and mental health records, visitation rights, and the right to make decisions that affect the child's long-term life.
  • Guardians have the authority to make decisions regarding the minor's care, custody, and control, but they cannot access any money that belongs to the minor.
  • Parental rights can still exist even after guardianship is granted, and the termination of parental rights is a method of last resort used only when the child's well-being is in danger.

If you are considering becoming a guardian for a minor in Indiana or already are one, you might have questions about how parental rights factor into the equation. Does receiving an order granting you guardianship terminate the parent's legal rights? What options are there for you as the guardian if you are dealing with the parent or parents of the minor, you have guardianship over? Does guardianship override parental rights in Indiana, or do they cease to exist? In short, receiving an order of guardianship does not typically terminate parental rights in Indiana. The general idea behind guardianship is that it is temporary and reunification is the goal of the court system. If parent rights ceased to exist when guardianship was granted, then the court could not reunify the family. A guardianship is not the same as an adoption. There also needs to be more clarity surrounding parental rights and how they factor into assuming guardianship of a minor in Indiana. Read on to learn more about the rights of the guardian and parental rights in Indiana.  


Guardianship in Indiana


Guardianship is used when the situation is such that the parents cannot care for the child but do not want to "lose" the child by surrendering the child for adoption. A lot of the time, guardianship is the appropriate method to provide the child with a stable home life while still maintaining family relationships. Ideally, the goal is that one day, the child can return to the care of their parent or parents.  


Generally speaking, having guardianship of a minor in Indiana does not terminate parental rights for the reasons listed above. Guardianships are used for various reasons, and having an order of guardianship does not remove parental rights. To better understand guardianship versus parental rights, let's define each:  


Parental Rights: parental rights are the automatic rights each parent has over their biological or adopted child. These rights include, by law, access to the child's medical records, access to the child's mental health records, and the right to visitation. It can also include the right to make decisions that affect the child's life long term, such as what school they attend and religious education. Parental rights also include the right to make social and financial decisions for the child.  


Rights of A Guardian: When an order granting guardianship is entered, it will usually state the specific powers of the guardian. For instance, if the guardianship is just of the person, there is no financial power over the minor child's estate. The guardian cannot access any money that technically belongs to the minor. Still, the guardian does have the authority to say where the minor lives and goes to school, what medical care the minor receives, and even move the minor outside of the state without breaking any law. In short, you will have the right to make decisions regarding the minor's care, custody, and control. If you have guardianship over the person and estate, you will have full authority over the minor and any money the minor has or receives.  


So, these two sets of rights contradict each other, but examining them in context makes much more sense. Guardianships of either the person or the estate, or both, require that the guardian be able to exercise power over the life of the minor for the well-being of the minor. A guardianship is not an adoption; it is a legal process to nominate and order that a person take care of a prospective ward. The reasons for guardianship can vary, but most of the time, it is because the parents cannot or will not care for the minor at the time that the petition for guardianship is filed with the court. An order of guardianship can technically "trump" parental rights in many ways, but it will not terminate parental rights. Another way to think of parental rights is to consider their parental responsibilities; if a party steps forward to take care of a child, they are taking on responsibilities and will need to be able to legally exercise certain powers, pushing parental rights to the back burner but not eliminating them.  


An example of this is once guardianship is granted, the legal parents can petition for and be granted visitation with the minor, which would be an exercise in parental rights. Another example is that the guardian, once appointed, can petition the court to request that the parents of the minor pay child support, which is an exercise in parental responsibilities. The point here is that guardianship does not remove standing for the parents. Standing is the legal right to petition the court for relief. The parents will still have the right to request visitation and petition the court to remove the guardian or replace it. If parental rights are terminated, as discussed below, the parents will no longer have the standing to petition the court to enforce any legal right.  


Termination of Parental Rights:


Sometimes, the state or the parties involved can petition the court to terminate parental rights. This is a method of last resort, used only when the particular facts and circumstances of the situation are dangerous for the child. One example would be if the child is being abused or neglected, for whatever reason or no reason at all, and the state or the parties involved think it would be in the child's best interests to no longer have to contact of any kind with the parent or parents.  


A court takes a petition to terminate parental rights very seriously because it will impact all involved parties for the rest of their lives. Naturally, a child will start asking questions as they mature and want to know why the termination occurred. Additionally, the parents will not only be relieved of their parental rights but will also be relieved of parental responsibilities; specifically, the parents will no longer be financially responsible for the child.  


Typically, the Indiana Office of Family and Children will file a petition to terminate parental rights with the Indiana court. The Office of Family and Children will have to show, by clear and convincing evidence, that the family has been separated for six months or more and that reunification effort are not successful. The Office of Family and Children will also have to demonstrate that reunification is not in the child's best interests. This is usually seen in cases of abuse and/or neglect.  


In the abuse and neglect cases, the parents can either agree to have their parental rights terminated or fight the termination. Depending on the facts and arguments presented to the court, the court can either decide not to terminate, or the court can terminate whether the parents agree to it or not.  


It is important to note that if a court orders the termination of parental rights for one child in a household, the court will also terminate the parental rights for every child in the household. The reasoning here is that if the parents are abusing or neglecting one child, it is likely that they are doing it to all children in the household, and their safety is also in jeopardy.  


Sometimes one parent will file a petition to terminate the other parent's rights in Indiana, but this is not typically seen in guardianship cases. It usually occurs when one parent cares for the child independently, and the other parent disappears. It can also occur when one parent has abandoned the child with the other parent, and that parent would like to have their new spouse adopt the child as their own.  


You should now better understand how parental and guardianship rights work in the legal system. Agreeing to become a guardian for a minor in need is a genuinely caring act and a huge responsibility. You should be fully informed of what your rights and responsibilities are. If you are considering becoming a guardian in Indiana or are already a guardian in Indiana but need help enforcing your rights, feel free to give O'Flaherty Law a call; we would be happy to help you.  

March 16, 2023
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