Either the Juvenile Court or the District Court may appoint a guardian for a juvenile. This has not always been the case. Prior to 2013, guardianships over minors were brought under the Uniform Probate Code and were commenced in District Court. In 2013, the North Dakota Supreme Court found that when the “fitness of a parent” was at issue the minor guardianship should be brought in Juvenile Court, not District Court. Due to the recent shift in case law, guardianships over minors may proceed through Juvenile Court or District Court. However, the requirements for a guardian in Juvenile Court are markedly different than those required for guardianship in District Court.
Let’s get down to the specifics of a Juvenile Court Guardianship. The petitioner is the person who is seeking guardianship, while the respondent is the party responding to the petition. The required respondents are the minor child, and their parents, guardians, or legal custodians. However, depending on the situation, social services, foster parents, relatives, or other individuals may also be required respondents. In addition, if the minor is an Indian Child, pursuant to the Indian Child Welfare Act, you may have to provide notice to the Tribe.
Once the proper parties are identified the petitioning party submits their petition, and any supporting documentation, to Juvenile Court, alleging facts that indicate the minor child is deprived. Juvenile Court will then determine whether or not the petition should be filed. If the petition is approved for filing, then a Lay Guardian Ad Litem is appointed. The Lay Guardian Ad Litem collects independent information and makes a recommendation to the Judicial Referee. At this time, the Juvenile Court will also set a hearing date to determine whether or not the minor child is deprived. Rules 6 of the North Dakota Rules of Juvenile Procedure and Rule 4 of the North Dakota Rules of Civil Procedure require the petitioner to serve all respondents with the summons and petition at least 24 hours before the hearing.
The Court Hearing
At the hearing, the petitioner will present evidence that supports their petition, and the respondents will have an opportunity to defend themselves. The Juvenile Court can only appoint a guardian over a minor if the petitioning party proves by clear and convincing evidence that the minor is deprived. The definition of a deprived child is found in North Dakota Century Code Section 27-20-02(8)(a)-(h). For example, if a minor child is without proper parental care or control, subsistence, education, as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodians; has been abandoned by their parents, guardian, or other custodians; is in need of treatment and their parents, guardian, or other custodian refuse to participate in treatment as ordered by the juvenile court; or is present in an environment subjecting the child to exposure to a controlled substance, chemical substance, or drug paraphernalia as prohibited by Section 19-03.1-22.2, then they may meet the definition of a deprived child. The Juvenile Court will consider the evidence presented and issue a final written order. If the Juvenile Court finds the juvenile is deprived and guardianship is the best way to proceed, then a guardian will be appointed. If the petitioner is the appointed guardian they will receive Letters of Guardianship, which outline the authority a guardian has over the minor child. Ultimately, a guardian over a minor child can last until the minor child is an adult.
In North Dakota, proceeding through the Juvenile Court system to obtain a minor guardianship is a relatively new process, and this article provides only a brief overview of a Juvenile Court Guardianship. These proceedings can result in significant legal consequences for the guardian, the petitioner, and the respondent. If you find yourself concerned for a juvenile in your life and you have questions about whether or not a guardianship is necessary, please give us a call. At SW&L, we have attorneys who handle exclusively family law cases, including juvenile guardianships and custody related issues. If you have an that you would like to discuss, please do not hesitate to call our Family Law Team at 701-297-2890.
The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice.