D.J. lives in Nebraska and is 11 years old. For nearly all of those 11 years, maternal grandparents Tim and Sherry have cared for D.J. On July 13, 1998, Tim and Sherry became D.J.’s legal guardians, formalizing their relationship to the child. Both of D.J.’s parents, Carla and Tory, consented to Tim’s and Sherry’s appointment as guardians in 1998. At that time, Carla’s and Tory’s marriage had fallen apart and neither felt stable enough to parent D.J.

In 2001 when Carla had remarried, gotten clean and sober and had become gainfully employed, she petitioned the Dundy County Court to terminate the guardianship. The County Court found that Carla had "forfeited" her constitutionally protected right to custody by "substantial, continuous, and repeated failure to discharge her duties of parental care and protection." Further, the Court found that it was in D.J.s best interest to have the guardianship with Tim and Sherry continue. Carla appealed the Court’s order and on July 2, 2004, the Supreme Court of Nebraska reversed the lower court’s ruling. (No. S-020129)

The Nebraska high court emphasized that a guardianship is no more than a temporary custody arrangement. It held there is a rebuttable presumption that a child’s best interests are served by reunification with a parent. Unless shown by clear and convincing evidence that a parent wishing to regain custody and control of her child is either unfit or has forfeited her right to custody, the "constitutional dimensions of the relationship between parent and child require termination of the guardianship." The high court found that the maternal grandparents had failed to show that Carla was unfit or that she had forfeited her right to custody of D.J. Thus, D.J.’s best interests were served by Carla’s resumption of custody.

Nebraska’s emphasis on a parent’s constitutional priority for custody is by no means unique. Had D.J.’s case been in Arizona and the guardianship been authorized pursuant to our probate code (Title 14 of the Arizona Revised Statutes), Carla would have resumed custody of D.J. upon hearing of her withdrawal of consent for the guardianship. If D.J.’s grandparents then wished to contest Carla’s right to parent D.J., they would have to file either a private dependency action in juvenile court pursuant to Arizona Revised Statutes Title 8, or an in loco parentis action pursuant to Arizona Revised Statutes Title 25.

Those who establish voluntary guardianships in Arizona must remember that revocation of parental consent is all that is required to terminate the guardianship. Guardianships in Arizona, just as in Nebraska, are temporary custody arrangements even though they may last for years.

Would you like to subscribe to Elder Law Issues? Simply provide your e-mail address and name below, and click "Subscribe". At the same time, you may choose to also subscribe to The Voice, the newsletter of the Special Needs Alliance.

Privacy note: We do not ever use your e-mail address or name for any purpose other than to send out our subscription-based newsletter. You can rest assured that we will not sell, trade or share this information with any other person or entity. We have no ancillary or associated companies or entities to which we could provide your e-mail address, either.

© 1993-2009 Fleming & Curti, P.L.C.
330 N. Granada Avenue, Tucson, Arizona 85701
520-622-0400 /  FAX: 520-203-0240