Nobles Law Firm

Terminating consensual guardianships

terminating consensual guardianshipsFor some reason, I’ve gotten a few calls lately about terminating guardianships.

What some people don’t realize is that it is quite common for parents to terminate consensual guardianships over their children. A client of mine went through that recently and, fortunately, we were able to get her children back thanks to the case of Troesken v. Herrington (In re S.H.), 2015 Ark. 75; 455 S.W.3d; 2015 Ark. Lexis 97.

In that 2015 case, a mother who had fallen on some tough times had consented to a permanent guardianship over her child in favor of the child’s grandparents. The fact that she had given her consent is essential because that fact made it easier for the mother to terminate the guardianship.

The Arkansas Supreme Court found in that case that a natural parent who has not been deemed unfit but has consented to a guardianship is entitled to the presumption that he or she is acting in the best interests of the child. In other words, Arkansas law recognizes a presumption that natural parents are fit and that a parent who withdraws consent to a guardianship stands a good chance of terminating the guardianship.

Of course, that termination is not automatic. Let’s say a parent has a drug problem and decides it is in the best interest of his or her child to give custody to a family member. The court establishes the guardianship and, later, the parent withdraws his or her consent to it and wants custody of the kids.

In that case, the parent will have to show that the guardianship is no longer necessary because the conditions that gave rise to it no longer exist. Looking at our example, then, the parent will have to prove that he or she no longer uses drugs in order for the court to find that the problems that necessitated the guardianship have been eliminated.

There are a lot of consensual guardianships in this state, meaning the aforementioned case makes it easier for parents to take custody of their kids after they get their lives back on track. Things get considerably tougher when a guardianship is established because the court found the natural parent or parents unfit.

That is an important fact to keep in mind should a parent recognize that his or her behavior is not benefitting the kids. It is much easier to get those kids back if a parent turns them over to a family member and consents to the guardianship.

Once a court finds a parent unfit, however, that opens up a whole lot of issues. We’re no longer talking about a presumption that a parent is fit – we’re talking about a court that found a parent to be unfit and will have to be convinced otherwise.

So, there you have it. Parents have a better chance of terminating a consensual guardianship over their natural children than they might think.

This column — part of the Practical Lawyer series — was authored by Ethan C. Nobles and originally appeared in the March 7, 2016, edition of the Daily Record in Little Rock.

One thought on “Terminating consensual guardianships

  1. McKendra Adams

    Dear Ethan,

    I have been so interested in the new opinion handed down by the Arkansas Supreme Court titled Donley v. Donley, 2016 Ark. 243 (June 9, 2016). According to my reading of that case, all that is required for a fit parent to terminate a permanent guardianship to which he or she consented is to withdraw consent.

    However, I wonder if that new rule would change if there is an open dependency-neglect case. The open d-n case does not involve any allegations against the parent who is trying to terminate the guardianship. The d-n case consolidated the guardianship case. My question is, after the juvenile court adjudicates whether the child is dependent-neglected or not (and regardless of that outcome since the parent who consented and who wants to terminate the guardianship is not accused of neglecting or abusing the child), can the parent simply voice to the court her desire to immediately terminate the guardianship?

    This may be relevant: the child is not in DHS custody, but remains in the guardians’ custody.

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