Is Permanent Guardianship of A Minor Really Permanent?

Posted by Nikki Gillespie | Dec 13, 2022

The simple answer is NO. In Massachusetts, Guardianship may be permanent until the child reaches the age of 18, at which time the Guardianship automatically terminates. However, Guardianship may be terminated before the child reaches 18 if a parent can demonstrate that they are "fit" to care for the minor.  A fit parent is entitled to custody and care of his or her child. Guardianship of Estelle, 70 Mass. App. Ct. 575, 578 (2007) (citing Bezio v. Patenaude, 381 Mass. 563, 576 (1980)).

The complex part is whether removal of the guardian would be in the best interest of the child and whether the parent requesting this removal can demonstrate that they are currently fit to assume parental duties necessary to care for that specific child. All children are unique. A parent may be fit for one child but may not for another. If a parent can demonstrate that they are fit to care for a specific child, then it is the guardians who must show with clear and convincing evidence that the removal would not be in the best interest of the child, and by doing so would cause significant trauma to the child.

To begin the removal process, you must have “standing”.  In the Probate and Family Courts in Massachusetts, to have standing, you are either the child's natural parents, the child is over 14, or anyone interested in the child's welfare. Once standing is established, Guardianship can be removed in several ways. The simplest and least adversarial is a parent can request the guardian to resign and to return the child to his or her custody. If the guardian refuses to return custody to the parent, then the parent, the child if over 14, or another interested person must file a petition with the Court for removal of the guardian. The notice of hearing must be served to all interested parties, including the child if they are over 14. The Petition for the Removal of the Guardianship must indicate why removal would be in the child's best interest. It also needs to reflect why the parent, or any other interested party is currently fit to assume and carry out the parental responsibilities for the child.

If the Court grants the petition, the Court will issue a Decree and Order terminating the Guardianship. The court will include the reasons the petition was granted, such as the parent can resume parental responsibility, the minor has been adopted by a third party, or the guardian has failed to act in the best interest of the child.

If you are involved in a Guardianship proceeding and would like to consult with Attorney Nikki Gillespie regarding your rights and responsibilities, please use the link below to schedule a call or call our Essex County office at (978) 488-8001 and speak with our team.

Schedule a call with Nikki

About the Author

Nikki Gillespie

I am passionate about issues affecting families and children, helping my clients navigate the legal process during the most vulnerable times, by providing dedicated, caring, and straightforward legal services. Before practicing law, I spent over 20 years as a corporate recruiter and negotiating c...

Schedule a Free Consultation

Use this link to schedule a call with one of our attorneys.