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Custody Guide For Child Caregivers: Caregiver process in Probate and Family Court

Information on obtaining legal guardianship or adoption in Probate and Family Court.

Table of Contents

What is a legal guardian?

A legal guardian has custody of the child with most of the same powers and responsibilities of a parent regarding the child’s support, care, education, health and welfare. A legal guardian must obtain authorization from court if the child needs extraordinary medical treatment. Additional limitations on the legal guardian’s authority may be ordered by the court. Unless terminated by the court earlier, a guardianship remains in effect until the child’s 18th birthday, or the child’s death, adoption, or marriage. A parent whose rights have not been terminated may ask the court to vacate the guardianship at any time.

Why would I want legal guardianship?

A caregiver would want legal guardianship so a child can have a responsible adult to care for the child due to a parent’s death, unavailability, or unfitness. For example, a guardianship may be necessary if a parent is unable to care for his/her child due to substance use disorder, mental health challenges, domestic violence, abandonment, or incarceration.

Why do I go to Probate and Family Court?

Probate and Family Court has jurisdiction to hear guardianship petitions if there is not a pending Care and Protection case in Juvenile Court.

Guardianship in Probate and Family Court with Parental Consent: Beth and Tom, parents of Robert, were both called to serve in a combat zone in the Army at the same time. With the parents’ notarized consents, Tom’s parents (the child’s grandparents) filed a petition for guardianship with the Probate and Family Court, asking for legal custody of Robert. With legal guardianship, they now have the right to make decisions regarding the child, such as medical care and school enrollment. They can also add Robert to their health insurance. When the parents return from their service abroad, they can ask the court to return custody to them. 

Guardianship in Probate and Family Court without Parental Consent: Iris has been caring for her grandson Charles since her daughter Maria left him in her care. Maria has a substance use disorder and cannot provide a safe home for Charles. Maria refused to sign a Caregiver Affidavit and threatened to take her son back. After Iris filed for temporary and permanent guardianship in Probate and Family Court, the court awarded her temporary guardianship and appointed an attorney to represent Maria who was indigent. Iris asked the court to appoint an attorney to represent Charles. Several months later, at the permanent guardianship hearing, Iris and the attorney for Charles provided evidence to the court to prove Maria was unfit and it was in the best interest of Charles to be placed in the custody of his grandmother, Iris.

What if there is an open Care and Protection case in the Juvenile Court?

If the child has an open Care and Protection case in Juvenile Court, in most cases you would not ask the Probate and Family Court for guardianship, but rather go to the Juvenile Court where the Care and Protection was filed. If the child has been involved with DCF in the past or is currently involved with DCF but does not have an open Care and Protection case in Juvenile Court, you may still file for guardianship in the Probate and Family Court.

How do I file for Guardianship at Probate and Family Court during Covid restrictions?

During Covid the courthouses are open for limited in-person matters, but most courts continue to address emergency and non-emergency matters virtually. Under current guidelines emergency matters such as motions for appointment of a temporary guardian may be filed by email, mail, e-filing where available, or in person. With remote hearings some people participate by video or phone. The Probate and Family Court currently has nine virtual registries where court users can receive face-to-face virtual assistance from court staff, ask questions and possibly be referred to a virtual lawyer for the day program while remaining in the safety of their own homes.

If you need help completing the court forms to file for guardianship of a minor, you may join the Virtual Court Service Center. Virtual Court Service Centers are available 9:00 a.m. to 12:00 p.m., Monday through Friday. After 12:00 p.m., if you have questions about your current court case or you want to start a new case, please call the Trial Court Help Line at 1-833-912-6878, or contact your local courthouse.  More information can be found at Remote Virtual Court Services.

What if the child is not a U.S. citizen?

If you are applying for a guardianship of a child who was not born in the United States, obtaining legal status for the child is important. If the child has been abused, abandoned, or neglected by a parent, ask the court to appoint an attorney with immigration experience to represent the child and consider hiring your own immigration attorney. The attorney should file a motion requesting the court conduct a hearing and make Special Immigrant Juvenile Status findings. This is the first step toward legal status through obtaining a "green card" for the child.

How do I file for a guardianship in Probate and Family Court?

To begin the process, you file a set of documents listed below, including a Petition for Guardianship of a Minor in Probate and Family Court asking for both legal and physical custody of the child. If there is an immediate threat to the child’s wellbeing, the caregiver may also file a Motion for Temporary Guardianship so the caregiver can gain or maintain custody of the child safely until the full hearing for guardianship can be held. If you do not want the parents to know your address and phone number which are on the petition, please ask the clerk of court to seal your personal information when you file the documents.

If you need assistance in completing and filing the paperwork, contact the Virtual Registry, Court Service Centers or consult your attorney. The forms you must complete can be found on the mass.gov website under Probate and Family Court forms for guardianship of minor. You will need to complete the following forms for each child and file them with the court in the county where each child lives:

Petition for Appointment of Guardian of Minor (MPC 140)

Motion for Appointment of Temporary Guardian for Minor (MPC 340): File this if you need temporary guardianship immediately. You cannot file it without also filing a Petition for Appointment of Guardianship of Minor.

Notarized Waiver and Consent to Petition for Guardianship of Minor (MPC 440): If one, or both, of the parents agree to the guardianship, have them sign the form in front of a notary who will notarize the form before you file it in court.

Notarized and Verified Consent or Nomination by Minor (MPC 441):  If the youth age 14-17 agrees to the guardianship, have the youth sign this form in front of a notary who will notarize the form before you file it in court.

Decree and Order of Appointment of Guardian of Minor (MPC 740)

Order Appointing Temporary Guardian for a Minor (MPC 742): File this if you are requesting a temporary guardianship.

Bond (MPC 801): You must file this, but you may ask the court to forgo posting bond if the child has no assets or income stream.

Affidavit Disclosing Care and Custody. This lets the court know if any other court is involved with the child.

Military Affidavit. You only file this if the parents oppose your guardianship.

Affidavit of Indigency. Complete this document if it is difficult for you to pay filing fees and expenses for serving notice.

Petitioner’s Checklist for Notice in Guardianship of Minor Proceedings (MPC 937): This explains how to give notice, a very important step you must complete prior to the hearing.

When will the guardianship hearing occur?

The court will set the date for the hearing 21 to 45 days after you file the Petition for Guardianship of a Minor. The paperwork called the Order and Notice, will be given to you with the hearing date and time.

What if it is an emergency and I need custody immediately?

If you need custody immediately, file a Motion for Temporary Guardianship when you file the guardianship paperwork. Provide specific information explaining the reasons for your emergency request. The court will hear the Motion for Temporary Guardianship as soon as it can be scheduled.

Whom am I required to notify?

The guardianship petition and the Order and Notice must be delivered to both parents and children age 14-17, unless the parents and children age 14-17 have signed a notarized consent form. This is called “service” on them. You must also serve the legal guardian, if there is one, or anyone the child has lived with in the last 60 days. If a parent, or another person who needs to be served, has died, you may need to provide the court with a copy of the death certificate.

Who can serve the documents?

Someone 18 years of age or older, who is not the petitioner, can serve the documents. The sheriff or a constable will serve the documents for a fee, which may be waived if the court has found the caregiver to be indigent.

What if I cannot obtain personal service on the parents?

If you are unable to have both parents served in person, send the documents by certified mail to their last known address with return service. If you successfully serve each of them by certified mail, bring proof of that to the court (the signed green return receipt from the Post Office). If the certified mail cannot be delivered, you will be required to ask the court for permission to publish one time in a newspaper in the community of each parent's last known address. If the father's name is unknown, you must publish to "Unknown and Unnamed Father."

What if I cannot afford the cost of service?

If you filed an affidavit of indigency, and the court finds that you are indigent, the fees involved for service will be waived. Bring the copy of the court order finding you indigent to the sheriff, constable, or newspaper and you will not have to pay.

How does the court know I served the documents?

Whoever serves the documents must complete the Return of Service section. You must file the Return of Service with the court if the documents were personally served. If you served by certified mail, you must file with the court the signed return receipt from the Post Office proving the document was delivered and received. If you published in a newspaper, you must bring the publication to the court and file with the clerk before your guardianship petition can be heard.

What do I do if my primary language is not English?

If your primary language is not English, inform the court or the Court Service Center and they will have interpreters available to assist you.

Will I have an attorney appointed to represent me?

In most circumstances you will not have an attorney appointed, but you may hire an attorney to represent you. If you have already been awarded guardianship, and the parents file an action to remove you as guardian, the court shall appoint an attorney for you if you have cared for the child for at least two years or an otherwise significant period of time during the child's lifetime, and you satisfy the requirements for indigence.

Will the child be represented by an attorney?

The court is required to appoint an attorney to represent the child at the request of any party.  Even if no party makes a request, the judge must appoint an attorney for a child when the court determines that the child’s interests in the case are, or may be, inadequately represented.   

Will the parents be represented by an attorney?

If the parents are indigent and request an attorney, the court will appoint an attorney to represent them.

Do I need to do anything else prior to the court hearing?

You must contact the probation officer who will ask you for basic identification information in order to look into state records to see whether you or others living in your home have any criminal background that would make it unsafe for the child to live in your home. The report probation gives the court is called the CARI report. The court must have this report from probation before hearing your petition for guardianship. Before the guardianship hearing, the court may also seek additional information regarding your suitability to be the child’s guardian, including records of your, or the child’s, past or current involvement with DCF.

What is a temporary guardianship hearing?

At a temporary guardianship hearing you would ask the court for immediate custody. You must explain how the child is endangered if the court waits a few months before a hearing can be scheduled. The judge may ask you if you are willing and able to care for the child. The judge may ask you to give examples of why the parents are unfit to have custody.

What does the temporary guardianship do?

The temporary guardianship gives you legal custody of the child subject to any restrictions the court may make until the permanent guardianship is ordered.

How long does a temporary guardianship last?

A temporary guardianship lasts up to 90 days but may be extended if necessary. If the permanent guardianship hearing is not held within 90 days, it is your responsibility to ask the court to extend the temporary guardianship order or it lapses. 

Why would the court delay the hearing of the case to a later date?

The judge may delay the guardianship hearing for any of several reasons having nothing to do with your case. However, the judge may also continue the hearing if you have not filed the complete paperwork, or if the parents or their attorneys require additional time to prepare for the hearing. In order to avoid delays, you will need to complete service and file all papers in a timely manner and you will need to know what you should bring to court so that the hearing can be held. Write the next court date down and return on that day with the additional documents.

What is required to obtain the guardianship?

If the parents signed the notarized consent forms, file them with the court so that guardianship can be granted. If the parents have not signed the consent forms, you must show that the parents were properly served and then, at the hearing, prove that the parents are unfit and that it is in the best interest of the child to be placed in your custody. You may bring relevant documents as well as other people to testify about the unfitness of the parents.

What do I do if the court grants my petition for guardianship?

Upon approval, the court will provide you with a Decree and Order of Appointment of Guardian of Minor. You should make several copies of the Decree and Order so that you can submit them to your insurance company or show them to the child’s doctor or school. Be sure to always have a copy with you. You must comply with any court orders. The court may order the parents to pay child support or have visitation. A year after you are granted the guardianship, and every year thereafter, you are required to file an annual report with the court.

How long does my guardianship last?

Your guardianship ends when the child turns 18, legally marries, or at any time when the court removes guardianship from you. The parents have the right to return to court and request that your guardianship be terminated, and that custody of the child be returned to them. If a parent requests your guardianship be terminated and you have cared for the child for at least two years or an otherwise significant period of time during the child's lifetime, and you satisfy the requirements for indigence, you can ask the court to appoint an attorney for you.

What if the court denies my petition for guardianship?

If the court denies your petition for guardianship, you may file an appeal, which requires filing a new case with the Appeals Court.  If the Appeals Court agrees that the judge’s decision was wrong, it could overrule the judge or order a new trial.  Whether, or not, you choose to file an appeal, you may file another petition for guardianship in the future.

What is an adoptive parent?

Adoptive parents are the legal parents of the child. The adoptive parents assume all rights and responsibilities of a biological parent when their Petition to Adopt is granted by the court. The adoptive parents may request that the court order that the child’s name and birth certificate be changed.

How is an adoption different from a legal guardianship?

An adoptive parent has the same rights and responsibilities of any other parent. Once completed, an adoption is final and lasts a lifetime. While a legal "permanent" guardian has most of the rights and responsibilities of an adoptive parent, this authority is subject to the court’s order and only lasts until the child turns 18. Unlike an adoption, a guardian’s rights may be limited by the court, and, if the court determines that it is in the child’s best interests, a caretaker may be removed as "permanent" guardian.

How do I become an adoptive parent?

Unless the person requesting the adoption is a blood relative or a stepparent, any prospective adoptive parent must be studied and sponsored by a licensed adoption agency before adopting a child in Massachusetts. If the biological parents are either deceased, consent to the adoption or, after a trial, the court finds the parents unfit and terminates their parental rights, the child is free to be adopted.

Adoption in Probate and Family CourtIris has had guardianship of her grandson Charles for five years. Maria has not visited or provided support for Charles. Iris wants to adopt Charles for many reasons. She found an attorney to help her file a petition to terminate the parental rights of her grandson’s biological parents and a petition to adopt in Probate and Family Court. The court terminated the parental rights then approved the adoption of Charles by Iris. After submitting the proper paperwork, Iris was named the parent on his birth certificate and Charles was able to take Iris' last name.

What is an Open Adoption?

A biological parent and an adoptive parent may sign an open adoption agreement to allow the child to be adopted but maintain some level of contact between the child and the biological parent. After a trial, the court may order a termination of parental rights, and determine that it is in the best of interest of the child to have some form of an open adoption. The contact may be an exchange of letters, or telephone calls, or visits. The nature and frequency of the contact depends on the best interests of the child. This agreement may be enforced by the court. Whatever the extent of the contact, in an open adoption the adoptive parent still becomes the legal parent, with the rights and responsibilities of any other parent.

Contact

Address

Supreme Judicial Court
One Pemberton Square
Boston, MA 02108
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