If siblings are further down the preferred list, this means you typically must prove that everyone listed higher up on the list is either unavailable or incapable of serving as guardian. However, you also may be able to get guardianship of a younger sibling if you have permission from any other adults who are legally preferred as the child’s guardian. For example, suppose your parents are planning to spend two years in France, leaving your 16-year-old sibling behind to finish high school. Your parents may consent to you being your sibling’s guardian while they’re gone. Other eligibility requirements include that you must be at least 18 years old, and you must have the financial ability to support your younger sibling. If your younger sibling has an inheritance, for example because your parents have recently passed away, you also may have to prove you have the ability to properly manage those funds on their behalf.
Digital copies of these forms may be available on the court’s website. Search for the family or probate court in your county (or the county where your younger sibling lives, if it differs) to see if forms are available online. You also can access forms by contacting the court clerk. They may provide you with the web address of the website, or you may have to make a trip to the clerk’s office to pick up paper copies.
If you don’t know any good attorneys who could help you, start your search on the website of your state or local bar association. There you can find a searchable directory of licensed attorneys in good standing who practice in your area. Being listed in the bar association’s directory doesn’t mean you shouldn’t do your own research on an attorney’s background and experience, however. Family law attorneys typically provide a free initial consultation, so you should use this to your advantage to interview several attorneys so you can compare and contrast them and find the attorney who’s right for you. Seeking guardianship of a sibling is a fairly specialized case, so ask attorneys not only how many guardianship cases they’ve handled, but how many involved siblings. While you may not be able to find someone who specifically handles sibling guardianship cases, anyone who does could potentially help you in a more specific way.
Keep in mind that typically your forms must be completed in black ink on plain white paper. If you’re filling out the forms by hand, print your answers legibly. You must provide information on the petition about yourself and your younger sibling, such as home address, age, and date of birth. In addition to the petition itself, you typically must complete portions of the notice of hearing form, a proposed order, and other forms. The clerk should have a packet of all required forms, or you can download them from the court’s website. Read the instructions for the forms carefully and make sure you have all the forms required. If your parents have passed away and you also want to take guardianship of your younger sibling’s inheritance, there typically will be additional forms that you have to complete detailing information about those assets.
Before you go to the clerk’s office, make several copies of all of the documents you need to file. You’ll need one copy for your records, and one for each of the people you need to serve. For example, the California courts recommend making at least three copies, because the clerk will keep the originals and one copy for the court’s records. When you file your forms, you’ll have to pay a filing fee, typically of around a hundred dollars – although in some courts it may be more. You may want to call the clerk’s office before you go and find out how much the filing fee is and what forms of payment are accepted. If you believe you can’t afford the filing fee, tell the clerk you want to apply for a fee waiver. The clerk will give you a form, which you must complete with information about your income and assets. If your income and assets fall below a threshold level established by the court system, or if you are currently receiving public benefits, the court may waive any fees associated with your case. The clerk will set the date for your hearing and give your copies back to you. It is your responsibility to deliver copies to all parties required to receive notice of the hearing.
People who must be served include your sibling’s biological or adoptive parents, if living, as well as any other close family members who could potentially serve as guardians, such as grandparents. If your younger sibling is over the age of 14, they also must be served unless they have registered their consent to your petition or filed an affidavit of support. Depending on the context of your case, others may need to be served as well. Technically, anyone over the age of 18 who isn’t involved in the case in any way can serve the papers for you by hand-delivering them to the required parties. However, you can’t serve the forms yourself. You also can hire a sheriff’s deputy or private process serving company to hand-deliver the papers for you, or use certified mail with returned receipt requested. When service is completed, the person who served the papers must complete the top of the proof of service form so you can file it with the court. The clerk will have copies of this form for you.
Make sure you have copies of your proof of service forms as well as your petition and other notices you completed or filed. In addition to your court documents, you also should gather any documents you have, such as account statements or pay stubs, that support any statements you made in your petition or other forms. You also may need copies of anything anyone else filed in your guardianship case. You may have additional documents if, for example, your younger sibling filed an affidavit consenting to your guardianship. If anyone filed any opposition to your petition, you’ll need copies of that document, which should have been served on you.
Witnesses may include family friends, neighbors, or even your younger sibling’s teacher or coach. Community or church leaders also can make good witnesses, particularly if they are familiar with both you and your younger sibling and your relationship. If you plan to call someone as a witness, meet with them at least once – if not several times – to go over questions you intend to ask them at the hearing. You should never ask a witness a question to which you don’t know the answer.
In many courts, you will be given a document that lists the duties of a guardian, which you must read and sign to demonstrate your understanding. Use that list of duties as an outline for what you’ll have to prove in court. The judge will only appoint you as a guardian if he or she believes that you can fulfill those duties and that the appointment would be in the best interests of your younger sibling. It can help to make an outline of what you want to say in court or the points that you want to make about being a guardian for your younger sibling.
If you’ve made an outline, use it as a checklist to round up the documents you’ll need. Basically, you want something that will support any point you’ve made in your outline. Generally speaking, you need to be able to show the judge that you are financially responsible and capable of caring for your younger sibling. It isn’t necessary for you to be well off, but you’ll stand a better chance of being appointed guardian if you have a steady job that you’ve held for awhile and are able to pay your bills. The younger you are, the more difficult it may be for you to get guardianship of a younger sibling – especially if there is an older family member contesting your petition. In that situation, present evidence of your education and background that demonstrates that you are a responsible, reliable person who your younger sibling respects.
This is true even if no one is opposing your petition, unless the court tells you otherwise. Try to arrive at the courthouse at least 30 minutes early, but give yourself more time if you live in a particularly populated area and you expect the courthouse to be crowded. You need to give yourself time to go through security and find the right courtroom. You may want to go to the court’s website ahead of time and look for a list of prohibited items so you can make sure you’re not bringing anything with you that isn’t allowed in the courtroom, such as a cell phone or other electronic devices. The judge may be hearing other cases on the same day as yours, so take a seat in the gallery until the judge calls your name. Then you can proceed to one of the tables at the front of the courtroom.
In many courts, the judge will simply ask questions if you don’t have an attorney, rather than requiring you to organize your presentation yourself. When you speak, whether to answer the judge’s questions or make a statement on your own, you should address the judge. Other than your witnesses, you have no need to speak to anyone else in the courtroom. If the judge says something to you or asks a question that you don’t understand, ask for clarification. If you don’t know the answer to a question, it’s okay to respond “I don’t know,” and that response is better than trying to make something up.
Ask your witness direct questions, and remember that you can’t ask them to testify to something that doesn’t come directly from their own knowledge or experience. In other words, you can’t ask a witness to tell the court what someone else said to them. You would have to call that person as a witness to ask them what they said. After you’ve finished questioning your witness – what is referred to as “direct examination” – any opposing parties will have the opportunity to ask them questions as well, through cross-examination. You may have the opportunity to ask your witness follow-up, or “redirect” questions after cross-examination, particularly if the other party has asked the witness something that you didn’t cover in your direct examination. The judge may have questions for your witness as well. If the judge asks your witness a question, let the witness answer – don’t interrupt or try to answer it for them.
Take notes if an opposing party says anything to which you want to respond, but don’t shout out or interrupt them during their presentation. If an opposing party calls any witnesses, you have the opportunity to cross-examine them just as they were able to cross-examine yours. Pay attention to what the opposing party asks, and look for holes or problems with the witness’s story that you can exploit during cross examination. Keep in mind that the ultimate standard is the best interests of the child. Even if the opposing party presents evidence that they would be a better guardian than you would, the judge will still grant you guardianship if you can prove that it would be in the best interests of your younger sibling to do so. For example, perhaps your aunt opposes your guardianship. She and your uncle are well off, while you are just starting out in your career. However, if your aunt were granted guardianship, your younger sibling would have to move to the other side of the country, leaving behind the only school and friends they’ve known in their life. In that example, the judge might decide it’s in your sibling’s best interests for you to get guardianship – provided you can show the strong ties your sibling has to their school, their friends, and their community, and how disastrous it would be to uproot them.
If the judge decides not to grant you guardianship, you may be able to appeal that decision – but you have a limited period of time to do so. Because appeals can be complicated, you definitely want to consult an attorney if you don’t already have one. On the other hand, if the judge granted you guardianship, get copies of the order so you can distribute them to people and entities, such as your sibling’s school, that will need to know that you now have legal responsibility for your sibling. The court should have a checklist of things you must do after you are awarded guardianship of your younger sibling. You also typically are expected to file periodic status reports with the court regarding the general wellbeing of your sibling.
