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How to Become a Child's Legal Guardian

  • Legal guardian: someone chosen by a judge to make legal decisions for a child when the child’s parents aren’t available.  
  • Ward or protected person: a child who has a legal guardian.  
  • Legal parent: a person who the government recognizes as a legal parent. Parents don’t have to go through a court case to be a legal parent. Many parents are automatically the legal parents to their children:  
    • Married parents: are automatically the legal parent to any child born during their marriage or within 300 days after they get divorced, even if the child isn’t biologically theirs.   
    • Unmarried mothers: are automatically a legal parent to any child they give birth to (unless they’re a surrogate).  
    • Unmarried fathers: are legal parents if their name is on their child’s birth certificate, they sign an official form saying they are the father, or if they have a court or agency order that says they’re the legal father. 
  • Caregiver: on this page, we use the word caregiver to describe anyone who is not a child's legal parent who helps a parent care for their child. A caregiver could be a childcare provider, stepparent, grandparent, other relative, friend, or roommate.  
  • Service: the proper way to notify someone about a court case. The person who starts the court case must notify the other person involved in the case before the case can continue. The most common way to serve someone is to have another adult (who is not part of the case) hand them court papers. If that can’t happen, there are rules for other methods of serving someone.  

A child may need a legal guardian if their parents are unable to care for them. 

Yes. Some options require you to go to court, and some do not.  

Options where you don’t have to go to court:  

  • Delegation of Parental Powers: a parent can use the Delegation of Parental Powers form to give a caregiver temporary permission to care for their child and make important decisions. The form requires the signature of at least one legal parent and the caregiver. For more information on this option, go here.  
  • Relative Caregiver Affidavit: if someone is caring for a relative’s child and they can’t find the parents to get their written permission, they can use the Relative Caregiver Affidavit form for one year to make decisions for the child. For more information on this option, go here

Options that require going to court:  

  • Legal custody: a stepparent, grandparent, other relative, or foster parent can also ask the court for custody of a minor child. Talk to a lawyer for more information about this option.   
  • Adoption: a caregiver can also legally adopt a child. Adoption is the legal process for replacing a child’s legal parent with a new legal parent. Talk to a lawyer for more information about this option.  

You may have other legal options as well, depending on your family situation. It’s always a good idea to talk to a lawyer so you can get a plan for your situation. You can find a lawyer using our referral database.  

Any responsible adult may become a child’s guardian. The adult must be willing and able to care for the child.

A court-appointed legal guardian has most of the same rights as a legal parent. For example, the guardian can:  

  1. Give the child permission to get married or be adopted; 
  2. Handle the child’s basic finances;  
  3. Take care of the child’s daily needs and medical care; and 
  4. Decide what school the child attends. 

You must turn in papers with the court. Your papers can ask the court to appoint you or someone else to become the child’s guardian.  

It’s a good idea to talk to a lawyer before starting a guardianship case to see if there are better options for your family.

If you do decide to get legal guardianship, your local court may have guardianship forms you can use. If your court doesn’t have forms, contact the probate office at your local court, or talk to a lawyer.  

You must start a guardianship case in the county where the child lives.

Yes. You must officially serve these people with copies of your court paperwork:   

  1. Both parents of the child; and  
  2. The child (if the child is 14 or older).  

You must also mail a copy of your court paperwork to:  

  1. Anyone who takes care of the child;  
  2. Other close relatives if the parents are deceased;  
  3. Oregon Health Authority (if the child is on the Oregon Health Plan); and  
  4. Oregon Department of Human Services (if the child is receiving government assistance such as food stamps). 

Yes. The child (if they’re 14 or older) and the child’s parents have the right to tell the court they disagree with the guardianship papers. It is unusual for a judge to appoint a guardian if the child’s parents object to the guardianship. 

The Indian Child Welfare Act (ICWA) may apply if a child is a member of a Native American tribe or qualifies to be a member. This law may make it more complicated to get a guardianship over a Native American child. You should talk to a lawyer who knows about ICWA before taking legal action.

You should talk to a lawyer before starting a guardianship case or taking any legal action. This is a complicated situation.

If DHS Child Welfare is involved in a child’s life, they get to make decisions for the child until DHS closes their case. DHS is the child’s legal guardian. 

DHS’s goal is to help parents become better parents so that they can safely raise their child. But if the parents do not change, DHS will find someone else to take care of their child long-term.  

If you want to become the child’s legal guardian, talk to someone at your local DHS Child Welfare office. Let them know you are interested in taking care of the child. DHS caseworkers will consider all the options and give preference to responsible relatives. 

Yes. The court will schedule a court hearing if either parent disagrees with you becoming the child’s guardian. At a hearing, you and the parents get to talk to a judge and show evidence. The hearing can be in person at the courthouse or by phone or video.  

At the hearing, you can testify and tell the judge: 

  • Why you think the child needs a guardian; and 
  • Why you are the best person to be the child’s guardian. 

You can also bring witnesses and other evidence to give the judge more information about why the child needs a guardian.

No. The judge must assume the child’s parents are doing what’s best for them. During the court hearing, you will have to convince the judge the parents aren’t acting in their child’s best interests. You can do this by testifying about what has been going on. You can also have witnesses testify and present other evidence, such as text messages, videos, or photos.

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