Kinship Guardianship as a Permanency Option - New Hampshire

Definitions

Citation: Rev. Stat. § 169-C:3

The term 'guardian' means a parent or person appointed by a court having jurisdiction with the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child and to be concerned about the general welfare of the child.

The term 'legal custody' means a status created by court order embodying the following rights and responsibilities, unless otherwise modified by court order:

• The right to determine where and with whom the child shall live
• The right to have the physical possession of the child
• The right and the duty to protect and constructively discipline the child
• The responsibility to provide the child with food, clothing, shelter, education, emotional security, and ordinary medical care

The rights and responsibilities of the custodian shall be exercised subject to the power, rights, duties, and responsibilities of the guardian of the child and subject to residual parental rights and responsibilities if these have not been terminated by judicial decree.

The term 'residual parental rights and responsibilities' means those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship, except guardianship pursuant to termination of parental rights, including, but not limited to, right of visitation, consent to adoption, right to determine religious affiliation, and responsibilities for support.

Purpose of Guardianship

Citation: Rev. Stat. § 463:1

It is the purpose of this chapter to secure for a child an environment of stability and security by providing for the appointment of a guardian of the person, when such appointment is in the best interests of the child. This chapter is designed to provide procedural and substantive safeguards for the rights of parents and their minor children. Implicit in this chapter shall be the recognition that the interests of a child are generally best promoted in the child's own home, unless the best interests of the child require substitution or supplementation of parental care and supervision.

A Guardian's Rights and Responsibilities

Citation: Rev. Stat. §§ 463:12; 169-C:3

Except as otherwise expanded or limited by statute or order of court, a guardian of the person of a child has the powers and responsibilities of a parent regarding the child's support, care, and education, but a guardian is not personally liable for the child's expenses and is not liable to third persons by reason of the relationship for acts of the child. The guardian shall not be liable for injury to the child resulting from the negligent acts or omissions of third persons unless a parent would have been liable in the same circumstances.

A guardian may:

• Give any necessary consent or approval to enable the child to receive medical or other professional care, counsel, treatment, or service. However, no guardian may give consent for psychosurgery, electroshock, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the court
• Consent to the marriage or adoption of the child
• If reasonable under all of the circumstances, delegate to the child certain responsibilities for decisions affecting the child's well-being

The duty and authority of the guardian include, but are not necessarily limited to, the following:

• The authority to consent to marriage; enlistment in the armed forces of the United States; and major medical, psychiatric, and surgical treatment
• The authority to represent the child in legal actions
• The authority to make other decisions of substantial legal significance concerning the child
• The authority and duty of reasonable visitation, except to the extent that such right of visitation has been limited by court order
• The rights and responsibilities of legal custody, except when legal custody has been vested in another individual or in an authorized agency

Qualifying the Guardian

Citation: Rev. Stat. § 463:5

In all guardianships of the person, except when an agency or institution is named as the proposed guardian, the court shall review the proposed guardian's record of criminal convictions maintained by the New Hampshire Division of State Police and any record of founded complaints of child abuse or neglect by the proposed guardian in the child abuse and neglect registry maintained by the Department of Health and Human Services.

Procedures for Establishing Guardianship

Citation: Rev. Stat. §§ 463:5; 463:8

Any person may nominate a guardian for a child in a will, by petition, or by written consent to a petition by another. A child age 14 or older or any person or authorized agency interested in the welfare of the child also may petition for appointment of a guardian. The petition shall set forth the following:

• Whether guardianship is being sought by the department as part of the permanent plan for a child in the department's custody pursuant to the Adoption and Safe Families Act of 1997
• Whether adoption of the child by the proposed guardian is contemplated

The petition shall include a statement describing specific facts concerning actions or omissions involving the child that are claimed to demonstrate that the guardianship is in the best interests of the child. The burden of proof shall be on the petitioner to establish by a preponderance of the evidence that guardianship is in the best interests of the child.

If a parent objects to the establishment of the guardianship, the court shall hold a hearing. The burden of proof shall be on the petitioner to establish by clear and convincing evidence that the best interests of the child require substitution of parental care and supervision to provide for the essential physical and safety needs of the child or to prevent specific, significant psychological harm to the child. If guardianship is sought by the child's grandparent as the result of the parent's substance use, the burden of proof shall be on the petitioner to establish by a preponderance of the evidence that a guardianship of the person is in the best interests of the child.

The consent of the child is not needed for the appointment of a guardian, but the court shall ascertain the child's preference and give to it such weight as may seem just. The court may appoint a guardian as requested if it finds that guardianship is in the best interests of the child and the person nominated is appropriate.

Contents of a Guardianship Order

Citation: Rev. Stat. §§ 463:8; 463:11; 463.13

When the court grants guardianship as part of the permanency plan for a child in the department's custody pursuant to the Adoption and Safe Families Act of 1997, the court shall so specify in its order.

Letters of guardianship shall be issued to the guardian and shall contain:

• The nature and scope of the guardianship
• Limitations imposed by the court on the guardian
• Whether the guardianship is part of the permanent plan for a child previously under the custody of the department pursuant to the Adoption and Safe Families Act of 1997

The appointment of a guardian of a child shall not relieve the child's parents, or any other persons liable for the support of the child, from their obligation to provide for such support. The court, at the time of such appointment or at any time thereafter, may order and require the parent(s) or other persons to contribute to the support and maintenance of the child in such amounts and at such times as the court determines to be just and reasonable.

The court may award reasonable visitation rights to the parent or parents. The presumption shall be in favor of liberal visitation rights absent a showing of harm to the child. If a party wishes to have any preexisting court visitation orders incorporated into the guardianship order, that party has the burden of providing said visitation orders to the court for its consideration. The court shall incorporate such visitation orders in its order, unless there has been a change in circumstances that warrants different visitation arrangements. In guardianships granted as part of the permanency plan for a child previously in the department's custody pursuant to the Adoption and Safe Families Act of 1997, the court may give the guardian discretion to determine visitation.

Modification/Revocation of Guardianship

Citation: Rev. Stat. §§ 463:15; 463:16

A guardianship of the person or of the estate of a minor shall terminate upon order of the court, the death of the minor, the minor's 18th birthday, a finding by the court that the minor has been emancipated under relevant State law, or the issuance of a final decree of adoption.

Any minor under guardianship of the person who is age 14 or older, or any person interested in the welfare of the minor, may petition for the termination of the guardianship of the person. The guardianship of the person shall be terminated upon a showing, by a preponderance of the evidence, that substitution or supplementation of parental care and supervision is no longer necessary to provide for the essential physical and safety needs of the minor, and that termination of the guardianship will not adversely affect the minor's psychological well-being.

In a proceeding to terminate a guardianship established by consent, the burden of proof shall shift to the guardian to demonstrate by clear and convincing evidence that substitution or supplementation of parental care and supervision is necessary. This provision shall not apply if guardianship of the person was granted to a grandparent as the result of the parent's substance abuse or dependence. In such cases, the burden of proof shall be on the parent to demonstrate by a preponderance of the evidence that substitution or supplementation of parental care and supervision is no longer necessary to provide for the essential physical and safety needs of the minor and termination of the guardianship will not adversely affect the minor's psychological well-being.

The court may from time to time, upon application of any person interested in the welfare of the minor, and with notice to all parties, revise or alter any prior orders or make a new order or decree relative to the guardianship of the person, of the estate, or both, as the best interests of the minor or the prudent management of the estate may require.

Kinship Guardianship Assistance

Citation: Rev. Stat. § 463:5

If the petition for guardianship was filed by the minor's grandparent, the court shall provide the grandparent with a brochure, prepared by the department, describing potential benefits for which a child under guardianship may be eligible through the State of New Hampshire. The department also shall post such information on its website.

Links to Agency Policies

New Hampshire Department of Health and Human Services, A Resource Guide for New Hampshire Relative Caregivers (PDF - 4,254 KB)