Seeking Private Guardianship for a Minor in Montana

NOTE: This information does not replace advice from a lawyer and recommendations are based upon Montana laws and the Montana Code Annotated. Forms and instructions are to help provide the correct information but may not be right for your case. This MontGuide information applies only to private guardianship, which can be granted outside of child protective services.

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GUARDIANSHIP IS WHEN SOMEONE IS LEGALLY

responsible for an individual who is unable to manage his or her own medical, financial and other major decisions. This is often seen in children under 18 years of age who have a parent who is unable to provide for their child because of incarceration, military deployment, illness or death. This MontGuide discusses private guardianship, which is sought out privately, or in a less formal process through the courts, than through child and family services. There is no funding from the Montana Department of Public Health and Human Services to pay costs associated with granting private guardianship.

When seeking private guardianship of a minor, if the child is a member of an Indian tribe, Indian Child Welfare Act (ICWA) may apply, information and the application can be found at dphhs.mt.gov There are several steps to become a guardian of a minor and it is important to consider the best interest of the child when completing paperwork.

In seeking private guardianship of a minor child, a Petition for Guardianship of a Minor Child and the Oath and Affirmation of Guardian must be completed and filed. These two documents are filed in the district court in the county that the child currently resides. The Oath and Affirmation (found in the Guardianship Packet at dphhs.mt.gov) document states that the individual applying to be the guardian has the child’s best interest in mind.

The petition asks the court to schedule a hearing to grant you as the guardian of the minor child. The courts will set a hearing date and the biological parents of the child must be notified. If possible, have one or both child’s living parents fill out and sign a Consent to Guardianship of a Minor Child document. You may file a petition even if neither parent signs the consent form, but it could be more difficult to prove to the court that your appointment as guardian will be in the child’s best interest.

The court system can be daunting; it is helpful to keep a specific binder with a calendar and all documentation and correspondence between all parties. Keep in mind the following items when obtaining guardianship and working with the courts:

• Make enough copies of all documents to be distributed or filed with the courts.
• Originals of all documents will be filed with the courts, keep a copy for yourself and make a copy for any other individuals involved in the case.
• Documents must be filed with the county in which the child resides and filing fees paid in that county (filing fees can range from approximately $50–150). If you can’t afford the filing fees, ask the of court for an Affidavit of Inability to Pay. If the court agrees that you cannot afford the filing fees, the court will write an order saying you do not need to pay filing fees (this document is only for you and the court). Give the Clerk of Court a self-addressed stamped envelope. Ask the Clerk of Court to mail a “conformed copy” of the Order Setting Hearing to you it has been signed by the judge. An Order Setting Hearing is a document that states when the case hearing will be held. This will often come with a Notice of Hearing document stating any additional individuals who need to be notified of the hearing date.

Steps for filing the documents

1. Make copies for yourself, the court and all of the other individuals involved.

2. File copies in the county in which the child resides.

3. Pay the filing fee (fees can range from $50–150). If you can’t afford filing fees, ask the Clerk of Court for an Affidavit of Inability to Pay. If the court agrees that you cannot afford the filing fees, the court will write an order waiving the filing fees (this document is only for you and the court).

4. If the court has not written an order waiving filing fees, you may be charged the filing fee.

5. Give the Clerk of Court a self-addressed stamped envelope. Ask the Clerk of Court to mail a “conformed copy” of the Order Setting Hearing to you after the judge signs.

Next, after the hearing is set, copies of the Notice of Hearing must be distributed to the individuals listed by the judge and Certificate of Mailing or Delivery of Notice must be completed as proof that the necessary individuals have been notified of the hearing date. During the court hearing, the judge will review the petition, keeping in mind the best interest of the child.

On the day of the hearing, it is important to arrive about 15 minutes early, check with the Clerk of Courts for the specific court room location. Be sure to bring copies of all documents that have been filed and distributed to others involved in the case, wait for the case number to be called and refer to the judge as “your honor.” When attending the hearing, the proposed guardian will explain why he or she is seeking guardianship. If you are the proposed guardian, be prepared to tell the judge why your guardianship would be in the child’s best interests. If you have already been taking care of the child, summarize that information for the judge. Bring important papers, photos, or documentation of attempted family contacts to the hearing. The judge will expect you to bring evidence and witnesses to the hearing. If bringing documents, you will need copies for the judge and each person who is part of the case. It is important to bring the child you are seeking guardianship for as well, as the judge may want to ask the child questions.

To move through the process of becoming a guardian of a minor, the following forms may be necessary and can be found in the Guardianship Packet under Guardianship and Conservatorship on the Courts of Montana webpage: 

• Petition for Guardianship of a Minor Child
• Oath and Affirmation of Guardian
• Consent to Guardianship of a Minor Child (make a copy of the blank form so each parent gets a copy)
• Nomination of Guardian by a Minor Child Age 14 or Older
• Order Setting Hearing
• Notice of Hearing on Guardianship of a Minor Child
• Certificate of Mailing or Delivery of Notice of Hearing
• Order for Guardianship of a Minor Child
• Letters of Guardianship
• Affidavit of Inability to Pay

An emergency temporary guardianship which is effective for up to 6 months can be requested if there is no adult able to make immediate and necessary decisions for the child. The process is the same as seeking private guardianship, but the petition must request that a temporary guardian be appointed, or a separate motion for temporary guardianship can be filed. A temporary guardianship is commonly used when the caregiver is not the Power of Attorney for the minor child and there is not an adult caregiver to make medical and educational decisions for the child on an immediate basis.

Resources

There are a variety of resources available when seeking guardianship of a minor. For more resources and information to assist in obtaining guardianship of a minor, visit courts. mt.gov and the Guardianship of a Minor Packet for more detailed information. Montana State University Extension also has other MontGuides on Kinship Caregiving, available to download free at store.msuextension.org (search by title or number).

• Raising Relative Children: Navigating the Resources (MT201813HR)
• Raising Relative Children: Learning to be an Advocate for your Relative Child (MT201812HR)
• Kinship Care Families: Navigating the Incarceration of a Parent (MT201818HR)