Does Guardianship Override Parental Rights?

Parental rights are not terminated in a permanent guardianship. However, it can remove a parent’s legal custody of his or her child. In most cases, permanent guardianship can be revoked if the child’s parent, the child, or another party chooses to file a petition with the court to revoke the guardianship. This can occur if the parent is deemed able to care for the child properly or if the guardian is deemed incapable of properly caring for the child.

Guardianship Vs Parental Rights

The state of Arizona recognizes the fundamental right that biological parents have to raise their child or children. In order to protect said rights, Arizona has laws in place preserving a parent’s right to the child’s upbringing, education, and healthcare. The biological parents still retain these rights, even when a guardian has physical custody of the child.

Guardianship court orders, however, do overrule custody provisions outlined in a family court order. Put simply, guardianships take priority and guardians do have the right to act on the child’s behalf if the biological parent’s rights are suspended.

The biological parents can voluntarily award guardianship to a non-parent when they are unable to care for the child. If guardianship is granted to a third-party, the parent will retain the right to the revoke the authority at any point. The parent would have to petition the court to terminate the guardianship. If the court then determines the guardian is unfit, the parent will need to comply with the requirements set forth by the court.

Legal Guardianship Types In Arizona

Below are the two types of legal guardianship that someone can petition the court for in Arizona.

Title 14 Guardianship

Also referred to as probate guardianship, Title 14 guardianship, is the easiest guardianship type to obtain. An individual must have the express consent of both parents in order to get this guardianship. One exception to this rule is if both parents have either had their rights legally terminated or if a parent is deceased.

Title 14 is oftentimes temporary and put in place when a parent is deployed or out of town. This type could also be used for appointing a guardian through someone’s will. This guardianship is typically granted through probate court. For example, a child aged 14 or older can tell the court whether they wish to have a guardian, and who they would like as a guardian, according to the Arizona Supreme Court. A child of this age or older is also able to petition the court to have a guardian removed.

Title 8 Guardianship

Title 8 guardianships will not require consent of both parents. They can be a more challenging type of guardianship to obtain, though. If someone believes that it is not in the best interest of the child to remain with one or both legal parents, he or she can petition for guardianship via juvenile court.

Unlike Title 14, Title 8 guardianships are permanent. If a parent happens to disagree with the guardianship, testimony and evidence can be submitted to court and a judge will determine what is in the child’s best interest. A guardian may be appointed under Title 8 if the child is deemed a dependent minor, has remained in the custody of the potential permanent guardian for at least nine months, and if reasonable efforts have been made to reunite child with the biological parents.

Source: “Does Guardianship Override Parental Rights?” Custody Xchange https://www.custodyxchange.com/topics/custody/legal-concepts/guardianship-parental-rights.php