Minor Guardianships

Under Vermont law, a minor up to the age of 18 may have a court-appointed custodial guardian:

With the parents' consent, if

• The parent has a serious or terminal illness
• The parents' physical or mental health prevents them from providing proper care and supervision
• The child's home is not livable as a result of a natural disaster
• The parent is incarcerated
• The parent is on active military duty
• Parties have agreed to another reason in the best interests of the child

Without the parents' consent, if

• The child has been abandoned or abused by the parent
• The child lacks proper parental care, subsistence, education, medical, or other care needed for their well-being
• The child is without or beyond the control of the parent

The primary duties of a custodial guardian are to give direction, assist with decision-making, and provide a nurturing environment appropriate to the child's age and abilities. A custodial guardian helps the child grow into an independent and responsible person. The duties of a custodial guardian include:

• Taking custody of the child and establishing their place of residence.
• Making decisions about the child’s education.
• Making decisions about the child’s physical and mental health, including consent to medical treatment and medication.
• Making decisions about the child’s contact with others. The guardian must comply with provisions of the guardianship order about parent-child contact and contact with siblings.
• Receiving funds paid for the support of the child, including child support and government benefits.
• Filing an annual status report with the court. The report should describe what actions the guardian has taken on behalf of the child over the course of the year and make recommendations for any needed changes in the guardianship. A copy of the report must be sent to the child's parents. Forms are available in the Reporting section at the bottom of this web page.

The guardian must keep the court informed about the child's circumstances. The guardian should let the court know of any major changes in the child's life as they occur.

A guardian cannot be held liable for the actions of the child, but a guardian can be liable for causing harm to the child.

A custodial minor guardianship ends on the child’s 18th birthday. It may end before that date in certain circumstances:

• If all parties are not in agreement, the parents can file a motion to terminate. The guardian receives notice and has 30 days to respond. The court will then schedule the matter for hearing. If a guardian does not think the child should go back to the parents, the burden will be on the guardian to show by clear and convincing evidence why the guardianship should continue.
• If the guardianship was initially established without the parents' consent, a motion to terminate can be filed only if there has been a change in circumstances. There must be a hearing in such a case.

Under Vermont law, a minor up to the age of 18 may have a court-appointed financial guardian if the minor is the owner of real or personal property. The financial guardian receives only the powers and duties related to the minor’s property. In general, competent parents or a competent surviving parent can be the financial guardian. If there is no competent or suitable parent, the appoints a guardian.

A financial guardian must make prudent and informed decisions about the use and disposition of funds and property to best suit the child’s needs. The financial guardian must receive prior authorization from the court before spending or selling a child's assets. A guardian's unauthorized use of the child’s assets may lead to criminal prosecution or charges of contempt of court.

A bond is usually required from petitioner in the case of a financial guardianship.

Financial guardians must file an inventory within 30 days of being appointed. They must also file a financial accounting using the Summary of Account for Minor Financial Guardianship (form 700-00093M) with the court each year.

A financial minor guardianship ends automatically on the child’s 18th birthday and upon the court’s approval of a final financial accounting filed with the court. It may be terminated earlier, but only by court order.

A standby guardianship is a way for a custodial parent to designate someone to be guardian of their children if they are unable to care from them because of an adverse immigration action. 

Adverse immigration actions include:

• arrest or apprehension by any local, state, or federal law enforcement officer for an alleged violation of federal immigration law.
• arrest, detention, or custody by the Department of Homeland Security or a federal, state, or local agency authorized by or acting on behalf of the Department of Homeland Security.
• departure from the United States under an order of removal, deportation, exclusion, voluntary departure, or expedited removal or a stipulation of voluntary departure.
• the denial, revocation, or delay of the issuance of a visa or transportation letter by the Department of State.
• the denial, revocation, or delay of the issuance of a parole document or reentry permit by the Department of Homeland Security.
• the denial of admission or entry into the United States by the Department of Homeland Security or other local or state officer acting on behalf of the Department of Homeland Security.

14 V.S.A. § 2622(9)

Prepare the paperwork

The custodial parent (or parents) should work with the proposed standby guardian to fill out these forms:

• Parent's Consent to Custodial Minor Guardianship in the Event of an Adverse Immigration Action (form 700-00070D) signed by the custodial parent. A separate consent form should be completed for each child. If both parents might face an adverse immigration action, each parent should complete the consent form.
• Custodial Guardianship Agreement and Family Plan for Families Facing Adverse Immigration Actions (form 700-00070E) signed by the custodial parent and the proposed (standby) guardian.

The forms are available in the Forms section below. 

If the parent becomes subject to an adverse immigration action

Once the consent and agreement forms have been filled out, the proposed standby guardian should keep them in a safe place.

If the custodial parent becomes subject to an adverse immigration action, the proposed standby guardian would file the forms required to ask for a custodial guardianship and the consent and agreement forms with the Probate Division of the Superior Court. The forms are available in the Forms section below.

See the Filing Procedures web page for information about filing options.

There is a $150 fee to start a standby guardianship case. If the filer can't afford the fee, they can ask the court to consider waiving it. See the Application to Waive Filing Fees and Service Costs web page for information and forms.

Go to the hearing

The court will schedule a hearing within 14 days. At the hearing, the judge will review the documents and decide whether to approve the guardianship agreement and appoint the proposed person as guardian. See the Going to Court web page for information about getting ready for a hearing.

Duration of a standby guardianship

A standby guardianship is effective only as long as the custodial parent is unavailable to care for their children because of an adverse immigration action. Once the parent is reunited with their children, the guardianship ends.

If the parent and children are reunited, either the guardian or the parent should file a motion with the court asking to close the case. A party may use the General Motion - Probate (form 700-00300) to make the request.

To begin the process, fill out and file the forms listed at the bottom of this page under Starting a Guardianship of a Minor Case. There are different forms depending on whether you're asking for a custodial or financial guardianship. Forms are also available at the courthouse.

Background Check

The proposed guardian and anyone over the age of 16 living in the household (or expected to live in the household) during the term of the guardianship must undergo a background check. They must fill out the Consent for Release of Information for Guardianship Proceedings (form 700-00407), which can be found at the bottom of this web page. The background check includes the Adult Abuse Registry, the Child Protection Registry, the Vermont Crime Information Center, and the Vermont Sex Offender Registry. 

Hearing

After you file the forms and the background checks are completed, the court will schedule a hearing and send notice to the interested persons. See the Going to Court web page for information about getting ready for the hearing. 

If the minor is 14 years old or older, they must attend the court hearing. A minor younger than 14 may attend the hearing, but they aren't required to do so.

Both of the minor's parents must receive notice of the hearing. If a parents has filed a written consent, their notice will be sent by first class mail. If a parent has not filed a written consent, they must receive notice of the petition and hearing by certified mail at least two weeks before the hearing.

If the identity or address of a parent is unknown, you can file a written request to ask for a waiver of the notice requirement. You can use the General Motion - Probate (form 700-00300) to make the request. You can find the form at the bottom of this web page.

The court will schedule a new hearing at the request of a parent who did not receive notice of the initial hearing.

If Only One Parent Consents

If only one parent consents, it is possible the other parent will fail to appear at the hearing. If so, you do not need to prove the unsuitability of that parent. If the other parent does appear at the hearing and objects, you must prove:

• the parent has abandoned or abused the child,
• the child does not receive the proper care necessary to the child’s well-being, or
• the child is beyond the control of the parent.

You must also show you are a suitable guardian. You must prove the need for a guardian by clear and convincing evidence, which means you have to provide evidence that strongly supports your allegations. You should get legal advice, as it can be difficult to prove a parent is unsuitable.

If Neither Parent Consents

If you know neither parent will consent, you must prove:

• the parents have abandoned or abused the child,
• the child is without proper care necessary for the child’s well-being, or
• the minor is beyond the control of the parents.

You must also show you are a suitable guardian. You must prove the need for a guardian by clear and convincing evidence, which means you have to provide evidence that strongly supports your allegations about the parents. Because such cases are difficult, you should seek legal help.

Many guardians serve without charging a fee. But depending on both the work involved and the assets of the person under guardianship, a guardian may be paid a reasonable fee. The amount depends on such factors as the time spent on guardianship responsibilities, the results achieved, the guardian's experience, and the complexity of the guardianship. Any fee comes from the estate of the person under guardianship. All guardian fees must be approved by the court.

If you are a guardian, you may request payment of a fee by filing a motion with the probate division. Your motion should describe the nature and extent of your work and include supporting documentation. You should send copies of the motion to all interested persons. You may not receive any fees until all personal and financial annual reports are filed with the court. You cannot pay yourself a fee without the permission of the probate division.