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A Discussion on Guardianship in Maryland

Nov 6, 2015 | Child Custody, Child Support, Family Law

A Maryland court case by the name of In Re: Guardianship of Zealand W. and Sophia W. brought about changes to court procedures for a relative who is seeking to obtain a guardianship of a child following the death of the child’s biological mother or father.

Before the Zealand case, it was permissible for a third party (such as a grandparent, aunt, uncle, or even a non-relative) to file a request for guardianship of a child in almost any circumstance. This included situations where one of the child’s parent’s was deceased and the other parent was still living. However, as a result of the Zealand case, this is no longer true.

Guardianship and Custody in Maryland

In this case, Zealand (who was born in 2000) and Sophia (born in 2003) were siblings. The children’s parents, David and Susan, were divorced in 2005, with David being granted sole custody of Zealand and Sophia. At the time of the divorce, the Court determined that Susan, the mother, was unfit to have custody of the children because of her long history of alcohol abuse. The Court found that it was not in the children’s best interest for Susan to have custody and granted her limited, supervised visits with the children.

The issue of guardianship arose when David passed away in 2012 and his first-cousin attempted to obtain an order of guardianship for the two children, despite Susan still being alive. In the guardianship petition, the cousin alleged that the mother was still unfit to have custody of the children and argued that he should be made guardian of the children.

Ultimately, the Court declined to grant a “guardianship” to the petitioner, explaining that he ought to have filed a Complaint for Custody, not guardianship because the biological mother was still alive. Although Susan had previously lost custody of the children to their father, there was never any ruling that she should be denied all of her parental rights.

According to the Maryland Code, Family Law Section 5-203, a child’s parents are the “natural guardians” of their child and one parent becomes the sole natural guardian of the minor child if the other parent: (i) dies; (ii) abandons the family; or (iii) is incapable of acting as a parent. Had there been prior TPR (termination of parental rights) proceedings before David’s death, it is possible that the Court may have granted the guardianship petition. Similarly, had David left a Last Will and Testament, or other such document, which stated his intentions for who should have custody of the children, perhaps those wishes could have guided the Court’s decision. Without such guidance, the petitioner was left to file a custody action, after the appeal of his guardianship case was denied.

Legal Guidance on Maryland Custody and Guardianship

For more information on our family law practices, visit our Child Custody page.  We concentrate in Child Custody as well as issues of custody after divorce.

To schedule a consultation concerning your specific situation, please contact our custody lawyers located in Montgomery County, Maryland.

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