The answer to the question “who is a guardian of a child?” can be an easy one. If you are the birth mother or biological father of a child, and currently married to or in a relationship with the other parent of the child, then you are a guardian. If there is a Court Order that says you are a parent (in cases of surrogacy or adoption) or guardian, then you are a guardian. Likewise, if there is a Court Order that says you are not a parent or guardian, then you are not a guardian.
If you gave birth to the child, and there is no Court Order saying you are not the child’s parent, then you are also their guardian.
What about when you didn’t give birth to the child and there is no Court Order in place? Well, then you have to look a little deeper to discover your status.
When you are not married to or in a relationship with the other parent, you didn’t give birth to the child, and there is no Court Order with respect to guardianship, there are a number of factors that should be considered. They are:
- Were you married to the other parent when the child was born, even if you are not married to them now?
- Were you in an Adult Interdependent Relationship (“AIR”) with the other parent when the child was born (more on that below)?
- Did you marry or have an Adult Interdependent Relationship with the other parent within one year after the child was born?
- Were you married to the other parent before the child was born, but divorced less than 300 days before the child was born?
- Did you live with the other parent for at least 12 consecutive months during the period the child was born?
- Have you made any voluntary payments of support for the child, within one year of finding out the child was born?
If you answered “yes” to any of the above, then you are likely a guardian of the child.
There are a few other categories where you may be a guardian as well. They are:
- Is there any written agreement where you agreed to be the guardian of the child?
- Did you voluntarily give or offer any financial support to the birth mother, either during or after the pregnancy?
- Did you voluntary give or offer any financial or non-financial support for the child, within one year after finding out about the birth of the child?
- Have you in any other way demonstrated an intention to assume the responsibilities of a guardian within a year of finding out about the birth of the child?
If you answered “yes” to any of those questions, it might be worth consulting a lawyer to discuss the specifics of your situation and to get some advice on your possible guardianship responsibilities.
Turning back to the AIR status from above, you will be classed as being in an AIR when:
- You are living with someone, sharing in one another’s life, functioning as an economic and domestic unit and emotionally committed to one another, and either:
- You are related by blood, both at least 18 years old, and have signed an Adult Interdependent Agreement; or
- You are not related by blood but:
- have lived together and have a child together;
- have lived together continuously for 3 years but have no child together; or
- have signed an Adult Independent Agreement.
If you need any advice on your possible status as a guardian, assistance navigating the checklist of guardianship factors above, or information on your rights and responsibilities once it is established that you are a guardian, we would be happy to help. Call us on (403) 981-0700 to set up an appointment with one of our lawyers and to discuss your specific situation.
Although we are a law firm, this blog post does not constitute legal advice. It is for informational or entertainment purposes only and shouldn’t be seen as financial or legal advice of any kind. You should consult with a lawyer before relying on any of the information contained in this blog post. We can be contacted at (403) 981 0700 to set up a consultation with one of our lawyers who can review the specific circumstances of your matter and provide you with personalized legal advice.