Montana law recognizes that parents have the legal right to raise their children as they see fit. However, situations may arise in which it becomes necessary for another person, possibly a family member such as an adult sibling, to take on the responsibility for making decisions in the child’s best interest by becoming the child’s legal guardian.
A guardianship in Montana is a legal relationship that is created when a court appoints a person to care for another person who is not legally competent to care for themselves. Courts in Montana may appoint one person to be the guardian of another in a variety of situations. An adult may get custody of a sibling in Montana when they are appointed to serve as the guardian of their minor sibling in certain circumstances.
Courts may grant a guardianship for a minor child whose parents are both unfit to have custody of their child in Montana or whose parents have both passed away. Guardianships are also granted for adults with disabilities or people who are no longer able to manage their affairs because of illness or mental incompetence. A local attorney in Montana would be able to provide more information about guardianships in that state.
Guardianship is the answer whenever a child’s biological parents are unable or unwilling to act as the child’s guardian. A court in Montana will name a guardian for a minor if the court decides that it would be in the best interest of the minor under the following circumstances:
- The parents agree that appointment of a guardian is the best way forward.
- The parent’s parental rights have been taken away by a court.
- The parents are not able to care for the minor because they have passed away.
- A person named as the guardian for the minor dies or becomes incapacitated, and they did not name a replacement guardian.
Court-appointed guardianship gives the guardian the legal right to make all decisions on behalf of the ward, whether the ward is a child or an impaired adult. If the ward is a minor child, a guardian is responsible for meeting all of the child’s physical and emotional needs, just as a parent would.
A guardian must advocate for the child when called on to do so. They must exercise authority when decisions are needed. They also help support the child’s or impaired person’s developmental and psychological well-being.
What Is the Process for Obtaining Custody of a Sibling?
A person who wants to be appointed guardian must submit a petition to the district court in the county where the proposed ward lives. A person seeking a guardianship would file a packet of forms that they can find online.
The court may appoint a guardian ad litem to represent the child during the process. The court may also assign an investigator to the case to gather information about the child and the person who seeks appointment as a guardian. The investigator presents a report of their findings to the court.
The court holds a hearing on the petition to determine whether the guardianship would be in the ward’s best interests.
The person who seeks appointment as a guardian has the burden of proving that they should be appointed. A prospective guardian must show that no less restrictive form of intervention is available. They must also show that they are qualified under Montana law to be appointed as the guardian of a minor ward. Expert testimony from physicians, psychologists, and social workers may be helpful.
A person may name a successor guardian in their petition. A person may want to name their spouse or another relative as a successor guardian to act as the child’s guardian if the person should become incapable of serving due to an emergency.
A successor guardian would only serve until a new petition can be filed with the court and the court has appointed a new guardian.
If a person seeking appointment as a guardian is married, they may ask the court to name another person as a co-guardian, e.g., a spouse. The court may still choose to appoint only one person as the guardian. If a person wants a co-guardian, they should prepare to explain to the judge at their guardianship hearing why they want a co-guardian appointed.
A person would do well to have a legal consultation before seeking to be appointed as the guardian of a minor.
How Old Do You Have to Be to Become the Guardian of a Sibling in Montana?
In order to become a guardian of a minor in Montana, a person must be at least 18 years old. They must also have a good moral character. As noted above, they must pass a background check. They must also show the ability to provide for the needs of a minor and show a strong commitment to serving the best interest of the minor.
Also, as noted above, a person must file a petition and supporting documents with the district court and attend a hearing on the petition. The court considers the preferences of any living parents or existing legal guardians before making the appointment of a guardian for a minor.
Can a Sibling Be a Legal Guardian?
If an adult sibling is otherwise qualified to be the guardian of a minor under the law of Montana, then an adult sibling may be appointed as a guardian.
What Else Should Be Considered?
As noted above, a child who has been orphaned may need a guardian. Also, guardianship might be appropriate if a Montana court has determined that it is in the child’s best interest to terminate the parental rights of a child’s biological parents per the laws covering child custody in Montana. A court might terminate a parent’s right to custody of their child in cases that involve child abuse or neglect, drug or alcohol addiction, or parental incapacity.
In some situations, a child’s parents themselves may have named an adult sibling in their will to serve as the child’s guardian if the parents pass away or become incapacitated.
It is possible that an adult sibling of a minor child would be the person who petitions a court to terminate the parent’s rights. A Montana family law attorney would be able to help an adult sibling collect evidence to support termination of parental rights and show that it would meet the child’s best interest standard. Courts use this standard for all child custody decisions in Montana.
They might also prepare a legal petition to get the adult sibling appointed as guardian.
If there is no adult sibling to serve as guardian and no other person qualified and willing to serve as a guardian, a court may appoint a public guardian. This person or entity has the necessary qualifications and is registered and approved by the county probate court to serve as a guardian.
The guardianship of a minor sibling would end when the minor reaches the age of 18 years or is emancipated by marriage or a court order.
Do I Need an Attorney for Sibling Custody Issues?
To become the legal guardian of your sibling who is under the age of 18, you want to consult a Montana custody lawyer. LegalMatch.com can quickly and easily connect you to a lawyer who understands the forms, documents, and court procedures required and can help you make your best case. Your attorney can provide you with advice and guidance throughout the entire process.
