What does it take to establish legal guardianship in Ohio?

Published 11:00 pm Saturday, January 24, 2009

Dear Lawyer Mark: I have a friend whose wife recently left him. They filed for divorce but I do not know if it is final yet. The problem is she left her kid with my friend and has not been seen in over six months.

I do not know if the child’s father knows about this because he lives in another state. My question is, can my friend be given legal guardianship of the child?

— Worried friend

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Dear Friend:

In recognition of the natural rights of the parents, Ohio Revised Code provides that a guardian shall be appointed for a minor if the minor has neither a father nor a mother or if the parents are suitable to have custody or if, in the opinion of the court, the interests of the minor will be promoted by another.

The law seems to be well settled that to appoint a person other than a parent as guardian of a minor, there must be a showing that the parent is not a fit person or has by abandonment forfeited his natural rights to the care, custody and control of the child.

Abandonment of a child has been defined as any conduct on the part of the parent that proves the parent has decided to forego all parental duties and relinquish all paternal claims to the child. Such abandonment must be proven in a case such as this.

There will be issues that must be explained surrounding the prompt departure of the natural mother, if abandonment is to be found. Also, even if the father does live in another state he must be notified of the change in parental supervision. Again, the natural parents of a child do have paramount rights over that of another individual.

If abandonment or unfitness is found, the forfeiture of their parental priority priority simply means that the presumption that a child’s interests are normally best served by being in the care, custody and control of a parent has been rebutted. At this point the court is permitted to consider what is in the best interest of the child.

In matters of guardianships, the probate court is required to act in the best interests of the minor child. It is well settled that a probate court has broad discretion in appointing guardianships and that decisions regarding the appointment of guardians will not be reversed absent abuse of discretion.

This means the court was unreasonable, arbitrary or unconscionable in its decision.

The facts of your friend’s situation do point to a possibility of his appointment of guardianship.

However, he must prove to the court he will act in the best interests of the child. In addition, a grandparent may come in and ask for guardianship as well.

Circumstances as this do arise when a stepparent do not adopt the child upon marriage to the natural parent.

My advice for him is to see legal counsel so he can be given a more in-depth explanation of these issues.

Thought for the week: there is always room for a good man except on a public golf course.

It’s the law is written by attorney Mark K. McCown in response to legal questions received by him. If you have a question, please forward it to Mark K. McCown, 311 Park Ave., Ironton, Ohio 45638; or e-mail it to LawyerMark@yahoo.com The right to condense and/or edit all questions is reserved.