In situations in which both of a child’s parents have passed away or have been deemed unfit to have child custody in Georgia, an adult sibling of the child who is at least 18 years old may request guardianship of the child. The adult sibling would not get custody of a sibling. Rather, what they would have is a legal relationship with their sibling that is referred to as “guardianship.” The minor child who has a guardian is referred to as a “ward.”
Guardianship resembles full custody of a minor child but is a different legal status. Some of the responsibilities that a guardian has are similar to those of a parent or other person who might have custody. They are as follows:
- Providing care for the minor child: So, for example, if the guardian wants to leave the house, they would have to make sure that a responsible adult is present to supervise the child if the child is of the age at which the law requires them to have adult care and supervision. The Georgia Division of Family and Children Services has guidelines regarding when children may be left alone at home or in charge of younger siblings. They state that a child under the age of 8 should not be left alone at any time;
- Supplying food and shelter,
- Providing the minor sibling with the medical care they need: Failure to provide a child with the medical care the child requires is a form of neglect;
- Ensure the child has access to education.
In Georgia, there are a number of different types of guardianships for minors as follows:
- Natural Guardianship: Both parents are the so-called “natural guardians” of their child. Only if they are absent, incapable or fail to take care of their child would a court appoint a legal guardian for the child, possibly an adult sibling;
- Testamentary Guardianship: A testamentary guardian is the person that a parent names in their will to serve as the guardian for their minor child after their death. If the child still has a living parent, the child has no need for a testamentary guardian. Their natural guardian or guardians, i.e. their parent or parents, is still present and capable of caring for the child;
- Temporary Guardianship: A person may petition to be the guardian of a minor child when the child’s parents are temporarily unable to care for the child themselves. The law requires that parents consent to a temporary guardianship. This type of guardianship may be revoked at any time;
- Permanent Guardianship: A permanent guardianship order grants to a person the authority to care for a minor when both parents are deceased or have had their parental rights terminated.
A sibling who wants to be named a guardian to a younger sibling must submit a petition in a Georgia probate court. The older sibling seeking guardianship needs to be at least 18, and the younger sibling must be under 18. An older adult sibling might get a guardianship of an adult sibling under certain circumstances, e.g. if the younger adult sibling has been incapacitated for some reason. But that is not the case at issue here.
Some qualifying factors that a Georgia probate court would consider in deciding on a request for guardianship would be the following:
- The degree of emotional attachment between the child and the sibling seeking the guardianship;
- Whether the guardian is willing to provide for the child;
- Whether the guardian has the means to provide for the child.
When an adult sibling files a petition in a Georgia probate court, the court holds a hearing. The adult sibling seeking guardianship would have to present evidence to show that their minor sibling would be safe in their custody and that their home is fit as a residence for the youth. The court would also want to know that the prospective guardian understands the role they are taking on and what their duties would be.
Again, child custody in Georgia is decided between parents and the decision is based on the child’s best interest standard. The standard for a guardianship is similar but not the same. A local attorney in Georgia would be able to provide more information.
