West Virginia 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 West Virginia 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 West Virginia may appoint one person to be the guardian of another in a variety of situations. A person does not actually get custody of a sibling in West Virginia. However, they may be appointed to serve as the guardian of their minor sibling in certain limited circumstances.
Courts may grant a guardianship for a minor child whose parents are both unfit to have custody of their child in West Virginia 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 West Virginia 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 West Virginia 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 they need to make all important decisions on behalf of the ward, whether that is a child or an impaired adult. A guardian is responsible for ensuring that all of a child’s physical and emotional needs are met consistently.
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 petition the court in the county where the proposed ward lives. They would file a packet of forms that can be obtained online.
The court appoints 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 West Virginia law to be appointed as the guardian of a minor ward. Expert testimony from physicians, psychologists, and social workers may be helpful.
A person would do well to have a legal consultation before seeking to be appointed as the guardian of a minor.
Guardianships in Idaho may be one of the following types:
- Permanent
- Temporary
- General
- Limited
- Testamentary.
The West Virginia Department of Health and Human Resources, through its Bureau for Children and Families, enforces guardianship agreements in West Virginia. This agency oversees the state’s guardianship program and ensures that everyone involved in a guardianship obeys any agreement.
The Department has the authority to intervene if there are problems. The Department may conduct home visits, background checks, and routine evaluations in order to ensure the well-being of those under guardianship.
How Old Do You Have to Be to Take Custody of a Sibling in West Virginia?
A guardian in West Virginia must be at least 18 years old. They must meet other qualifications as well. Of course, a court would only appoint a guardian who is not only old enough but also mentally competent and otherwise fit or suitable to serve as a guardian for a minor child. For example, a guardian may not have any felony criminal convictions. They must be otherwise capable of taking on the responsibility of providing for a minor child.
A person appointed to be the guardian of a minor would have to pass a background check and complete a court-appointed training program.
Can a Sibling Be a Legal Guardian?
A court in West Virginia may appoint any person they think is suitable to be a guardian, including an adult sibling. On the other hand, a guardian does not have to be a relative of the prospective ward. However, a West Virginia court does give preference to the protected person’s relatives if more than one person seeks to be appointed the guardian.
One person may petition a court to be appointed guardian. However, 2 people, usually a couple, may serve as co-guardians also.
If more than one person seeks to be a guardian, the court will give preference to one of them on the following basis:
- People nominated for guardianship by the parent if the ward is a minor child
- The court considers a request regarding the choice of a guardian made by the prospective minor ward if they are 14 or older, but the court does not have to honor the request.
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 West Virginia 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 West Virginia. 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 West Virginia 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 West Virginia.
They might also prepare the 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 come to an end when the minor reaches the age of 18 years or is emancipated by marriage or the order of a court.
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 West Virginia 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.
