Legal Guardianship of a Minor Child in Foster Care

By Beverly Bird

Father posing with son on his shoulders

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Foster care is usually an emergency stop-gap measure used when a child’s home life reaches a point where she can no longer live safely with her parents. Another family or adult cares for the child while social services and the court deal with the problem that led to the child’s removal from her home. However, sometimes the problems aren’t fixable and the child needs a more permanent solution. In these cases, courts assign or approve a legal guardian to have custodial rights and responsibility for the child according to a guardianship order.

Removal of a Child

Generally, a state's social services network intervenes and removes children from their homes when they are in immediate peril living with their parents. Social services then petitions the court to place the children in foster homes. An extended family member or close friend may step forward to take in the child; some states call this "kinship care." However, the family member must usually apply to the state and be approved as a foster parent before such placement is approved. When no family members are willing or available, the state will place children with third-party foster parents.


Every state's goal is to eventually reunite foster children with their parents. Foster parents accept children into their homes knowing this. Those who are not related to the child try not to let themselves become too attached to the child because they will eventually part ways. While the child is in foster care, the court orders reunification efforts such as counseling, drug or alcohol rehabilitation, or parenting classes to help parents restore their abilities to care for their children. Parents often have visitation with their children and retain their parental rights.

Failure to Reunify

Some circumstances are beyond the scope of rehabilitation or therapy. For example, the court might remove a child from her parents’ home and return her after what appears to be successful rehabilitation only to find out the parent has committed the same grievous behavior again. Alternatively, reunification may not be possible in the first place because the parent has severely injured the child. In these situations, courts in most states will terminate the parents’ rights. This paves the way for a more permanent solution for the child, such as adoption or guardianship, either by the foster parent or another family wishing to take in a child in need.

Guardianship Procedure

While a child is in foster care, the state usually has custody, even during the reunification process. The state continues to maintain custody when and if the court terminates her parents’ rights. Therefore, if foster parents want to initiate guardianship proceedings when it becomes legally clear their child won’t be returning to her family, they need approval from the state not the child’s parents. This is true even if the foster parent is a family member. The same procedure applies if another family wants to take in the child. However, foster parents are usually given preference because the court wants a secure, permanent home for the child. It generally will not uproot the child if the foster family wants to pursue a more permanent relationship. Guardianship proceedings usually begin with the filing of a petition with the court then serving notice of the petition on all interested parties. When foster parents seek guardianship of their foster child, they usually must serve notice on the social worker or case worker and the state government rather than the child's parents because the parents' rights are already terminated.

Legal Implications of Guardianship

Because the state has custody of foster children, the court makes all major decisions regarding their lives while they're in foster care. This power transfers to the foster parents when they achieve guardianship. Before they’re approved as guardians, foster parents must clear most decisions regarding the child with her social worker before taking action. This includes issues of schooling and medical care. However, after the court approves guardianship, guardians have the same rights and responsibilities as parents with full custody. Guardianship usually terminates the relationship between the foster parents and social services.