Guardianships in the context of a West Virginia divorce is a subject that can come up from time to time. What is a guardianship? A guardianship is when somebody other than the biological or legal parents of a child has custodial or legal rights to that child. It could be a grandparent. It could be an aunt or uncle. It could be a family friend. It could be anybody who has legal rights to a child that is granted by a court. That’s basically what a guardianship is. Now, what it takes is generally speaking is a court order though we do have what are known as common law guardianships, but for the most part, what happens is when somebody believes they want or need to have the legal rights over a child over their parents, they would file a petition with the court.
At that point, the court would decide whether to grant it or not. Now it’s an incredibly high standard in terms of whether to grant a guardianship because fit parents have a fundamental right to the care and custody of their children across the countries, not just in West Virginia, it’s across the country. That federal constitutional law is that parents have a constitutional right to the care and custody of their children. What that means is that in the event that somebody else outside of the marriage wants to petition the court for custody or rights to an extremely high standard that they have to meet to take away those legal rights from the parents. It happens from time to time and it sometimes happens in a divorce and the concept text of a divorce. The most likely scenario is one in which let’s say that you have one of the biological parents, that’s totally not in the picture. Let’s say one has a step parent that is completely in the picture. It might be a step mom or step dad that has been in the child’s life for years and years and years. What the court will sometimes do is they’ll take up a petition for guardianship filed by the step parent.
In many instances, it might be a stepmom or stepfather who’s been the father figure in the child’s life. They can petition the court for a guardianship though. It’s very difficult. It’s a tough standard to meet in the context of a West Virginia divorce, but it does happen from time to time. The guardianship petition is a totally separate action from the divorce. If a step parent wants to go after guardianship over the child and wants to have some sort of custody or rights, it takes a separate proceeding to file that. There’s a separate action that would be involved that would have to be filed for that person to be awarded the guardianship.
