Guardianship in the Commonwealth of Virginia
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Guardians and conservators are fiduciaries appointed by the court to protect individuals who cannot care for themselves. This includes minors, those under the age of 18, and the incapacitated. Depending upon the circumstances, a guardian can have a relatively wide range of responsibilities and authority over the individual’s healthcare, education, safety, personal needs and care. The following applies specifically to guardianship in the Commonwealth of Virginia for a minor child.
The Commonwealth of Virginia recognizes several types of guardianship:
- Guardian of the person
- Guardian of the estate
- Testamentary guardian – as assigned in a parent’s Will
The Commonwealth of Virginia has two courts with jurisdiction in child guardianship-related proceedings. The Circuit Court addresses cases involving separation or divorce. The Juvenile and Domestic Relations District Court rules on other issues, such as custody cases, but if appealed these matters will be addressed in the Circuit Court as well.
The child must first meet residency requirements which means the child must have resided for a minimum of 6-month within Virginia.
Guardian of a Minor
The first step is to complete the Guardian of a Minor form. Once completed it must be filed with the court closest to the child’s residence, or if there is existing court business associated with the child, filing should be done in the existing court. In addition to filing said form, a petition or motion requesting guardianship and a hearing request need to be submitted to the court. All relevant parties need to be provided notice of the hearing.
There is a minimum time frame of 30 days before an appointment of guardian, if not related to the child. If the child is under the age of 14, the Circuit Court or the Circuit Court Clerk may appoint or nominate the guardian for the child. If the child is over the age of 14 the minor child may nominate a guardian of his or her own choosing, which must be approved by the court.
Custody Petition and Summons
The custody petition must show that the best interests of the child are paramount. If the child’s parents are alive then the child’s relationship with the parents must be included in the petition. Virginia law has specific criteria that judges must review in determining custody. These issues include any family relations the child may have with siblings, parents, extended family and the primary caretaker(s). Support history is important as is the child’s choice for custodian or guardian.
An affidavit with the child’s complete residential history must be completed as ordered by the Uniform Child Custody Jurisdiction Enforcement Act and required by Virginia courts. A summons must be completed identifying the time frame for responding to the petition. In some counties this will be done by the court on behalf of the individual seeking custody.
All documents must be signed by a notary, court personnel or your attorney and then filed with the Juvenile and Domestic Relations District Court or the Circuit Court depending on the jurisdiction. The court clerk receives the documents and provides the date and time for the hearing. Three copies need to be made of the final version and each and distributed to the court, yourself and the other party(ies), and in divorce the other parent.
The other parent must be served by a process server or law enforcement personnel, through certified mail, or newspaper listing if the address or location is no known, according to legal requirements.
Qualify as Guardian
The individual appointed guardian must “qualify” before the county clerk by taking an oath promising to uphold the responsibilities. Questions regarding personal credit and criminal background must be beyond reproach. The guardian must post bond as required by Virginia law unless otherwise determined.
Note: The respondent has 21 days within which to respond to the petition following proper service. An attorney should always be consulted if at all possible to ensure proper procedures are completed.
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