Does Guardianship Override Parental Rights in Arizona?


Guardian and parental rights heavily overlap but the two roles are not identical. According to The Judicial Branch of Arizona, a person interested in the welfare of a minor may petition the court for guardianship. Guardians in Arizona are responsible for taking over parental responsibilities, including decisions regarding the child’s housing, education, and health care.

Permanent guardianship does not terminate parental rights. It can; however, remove a parent’s legal custody of the child. In the majority of cases, permanent guardianship can be revoked if the child, the child’s parent, or another involved party files a petition with the court to revoke guardianship. This could occur if a parent is deemed able to properly care for the child or if the guardian is proven to be incapable of caring for the child.

As a guardian, a person is able to make educational decisions, authorize medical care, and make other decisions about the day-to-day needs of the child. However, parents do not relinquish their parental rights unless they legally agree to terminate their parental rights. In this case, guardian rights could override the rights of the relinquished parents.

Types of Legal Guardianship in Arizona

There are two basic types of legal guardianship that a person can petition the court for in Arizona.

Title 14 Guardianship

Title 14 guardianship, also known as probate guardianship, is the easiest type of guardianship status to obtain. However, to become a guardian under Title 14, a person must have the express consent of both legal parents. The exception to this rule is if the parents have had their rights legally terminated or if a parent is deceased.

This type of guardianship is often temporary, such as if a parent is deployed, working, vacationing, or out of town. It may also be used for appointing a guardian through a person’s will or for appointing a guardian for an unmarried child if parental rights have been suspended or terminated.

Title 14 guardianship is generally granted through probate court. According to the Arizona Supreme Court, a child aged 14 or older can tell the court whether he or she wants a guardian, and if so, who they would like to be their guardian. Children aged 14 or older can also petition the court to have a guardian removed.

Title 8 Guardianship

Title 8 guardianships do not require the consent of both parents. However, they can be more challenging to obtain. If a person believes that it is not in the best interest of the child to remain with a legal parent, he or she can petition for guardianship through juvenile court.

This type of guardianship is permanent, meaning the guardian would be responsible for the health and wellbeing of the child until he or she turns 18 or until the court revokes the guardianship. If a parent disagrees with the guardianship, testimony and evidence will be submitted to court and a judge will decide what is in the best interest of the child.

A guardian may be appointed to a child under Title 8 if the child has been deemed a dependent minor, if the child has remained in the custody of the potential permanent guardian for a minimum of nine months (unless prior custody is waived by the court), and if reasonable efforts have been made to reunite the child and parents.

Parental Rights vs. Guardian Rights

Arizona recognizes the fundamental right that biological parents have to raise and nurture a child. To protect these rights, the state has laws in place that preserve a parent’s right to a child’s upbringing, health care, and education. In situations where a guardian has physical custody of a child when a parent does not, the biological parents still maintain their rights.

However, guardianship court orders overrule custody provisions outlined in a family court order. In other words, guardianships take priority and guardians have the right to act on behalf of the child if the biological parent’s rights are suspended.

Biological parents may voluntarily award guardianship to a non-parent if they are unable to care for the child themselves. If guardianship is given to a third-party, the parent has the right to revoke this authority at any time. However, before guardianship ends the parent would have to petition the court. If the court establishes guardianship due to a parent being unfit, the parent will need to comply with requirements set by the court.

Speak with an Attorney to Determine Your Rights

Guardians have many of the same responsibilities and powers of a custodial parent in terms of the child’s care, support, and education. However, the rights of a guardian do not always override the rights of a biological parent in all situations.

If you need assistance establishing guardianship for a minor child or require clarification about your rights as a parent or guardian, speak with a qualified family law attorney at JacksonWhite Law.

Call the Family Law Team at (480) 467-4348 to discuss your case today

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