Child Custody IAQ: How to Take Custody of an Endangered Kid

Child custody cases are extremely complex, and not just because of the human realities and emotional investment involved — they’re complex just on their own, as legal entities. That’s why we’re devoting a couple of weeks this month to a short Child Custody IAQ: Infrequently Asked Questions. Today’s questions are all about someone (generally a grandparent or uncle, but sometimes a family friend or even a neighbor) seeking legal custody of a child because they are endangered by their parents. The position is called “legal guardianship of a minor,” often shortened to “minor guardianship.”

What Can I do if a Child I Know is In Danger?
If you have a good reason to believe that a child you know is in imminent danger — as in, that they could be severely hurt at any moment — your first priority should be to call the police. If you have good evidence that a child is in chronic danger — they’re regularly malnourished, their parent is frequently abusive or neglectful — your call should be to Child Protective Services.

Should I Remove the Child From the Situation?
Under very few circumstances is it advisable to attempt to remove a child from their situation on your own. You will at the very minimum be at risk of trespassing, kidnapping, and probably other crimes. It’s also a real possibility that you will be at risk of becoming a justifiable homicide victim — no court will convict a parent who shoots you when they see you dragging their child away. Start by calling the relevant authorities, then deal with the issue of guardianship.

Won’t the Authorities Put the Child in Foster Care?
Yes, and that’s a good thing. A child that is at home with their parents is more difficult to think of as endangered than one who is already in temporary foster care. If you intend to seek minor guardianship of this kid, starting from “they have no functional parents” is a huge step down the path compared to starting from “they’re living at home with their parent(s).”

How Can I Become a Minor’s Guardian?
There are three circumstances when the law deems it appropriate to put a child under the legal “full guardianship” of a non-parent adult.

1. When the parental rights of all existing parents have been suspended (via a court order),
2. When the child has lived with a third party for an extended period of time and that third party has no legal authority to care for the child, or
3. When the child’s only legal parent dies or goes missing, and the person seeking guardianship is related to the child by marriage, blood, or adoption.

(Note that the final case is often resolved by finding the other parent (almost always the father) and instating their parental responsibilities by court order, so it’s a fairly rare circumstance. )

Those rules apply to “full guardianship” — there are also “temporary” and “limited” forms of guardianship which are much less restrictive. Often, for example, a judge will give temporary guardianship of a child for as long as is required to finish a longer guardianship petition, or for the child’s parent to resolve a legal obligation that prevents them from parenting.

By contrast, limited guardianship is always requested by the child’s parent, to allow someone to care for the child while they straighten up their lives — completing a prison sentence, going through rehab, recovering from a crippling disease, or so on. Limited guardianship generally results in a child custody arrangement much like a divorce, with the guardian playing “custodial parent” and the actual parent getting arranged visitation rights (and, often, paying child support!) The actual parent will also be given a list of things they must accomplish to get their child back. Limited guardianship can transform into full guardianship if the parent cannot accomplish that list, but that’s a fairly rare occurrence.

So in short, if it’s your honest hope to take full custody of a child you know that is being endangered by their parents, your best realistic option (assuming the parent(s) won’t cooperate) is to call CPS, have the child enter the foster system, and adopt them from there.