The state’s procedures on minor guardianship disputes could change this coming legislative session.
Rep. Sandy Haas, P/D-Rochester, plans to sponsor a bill setting new rules for minor guardianship cases.
In minor guardianship cases, family members or third parties can opt to care for a child when parents are unable. Those seeking guardianship must file a petition for guardianship with the Probate Division of the Superior Court.
There is little statutory guidance, especially when parents are not willing to waive custody of their child, says Haas, vice chair of the Human Services Committee. This would change with new legislation, she said.
“The basic concept is – if it is nonconsensual – the procedure would be significantly tightened up,” Haas said.
She said historically, probate judges have had “personalities” that differ among the state’s counties. Unlike many court judges who are appointed, counties elect the state’s 18 Probate Division judges to four-year terms, according to the Vermont Judiciary website.
“They have different rules,” Haas said.
The unsigned bill has been referred to both the Human Services and Judiciary committees. A short form of the bill, H.256, can be found here.
The bill aims to set a uniform procedure for guardianship disputes across all counties in the state.
Haas was hesitant to say whether the Legislature would vote on the bill during this second year of the biennium, but she said committees will certainly work through it.
Rep. Bill Lippert, D-Hinesburg, is chair of the House Judiciary Committee. During a meeting on Wednesday outlining the committee’s upcoming priorities, he said both the House Judiciary and Human Service committees will consider new rules for minor guardianship.
“I intend for us to take it up,” Lippert said after the meeting.
The issue resurfaced after the committee heard testimony from the Act 56 Minor Guardian Committee members assigned to draft a report on minor guardianship nearly three years ago.
Amy Davenport, chief administrative judge for the Vermont Trial Courts in Vermont, was one of 10 original members drafting the report.
She has spent more than two decade serving in Vermont’s trial courts, including civil, family and criminal, and she said there is little uniformity and structure for guardianship cases.
The Probate Division, which is one of five divisions within the Vermont Superior Court, has a relatively simple process for voluntarily guardianship cases, she said. This occurs when a parent is unable to care for his or her child, such as when a single parent travels overseas to serve in combat, for example.
However, the process becomes fickle when the guardianship is contested and the parents are unwilling to forfeit custody of their child. The rules and procedures for these cases vary across all counties, she said.
For example, when a single parent seeks rehab for substance abuse, that parent may voluntarily request a family member, such as a grandmother, to temporarily assume guardianship of a child. Sometimes the grandmother does not think the parent is suitable for parenthood even after the rehab is complete, and may want permanent guardianship. In this situation, there is little statutory guidance for the dispute.
This dilemma is compounded by an increase in substance abuse across Vermont, she said.
“I think we are seeing more contested issues,” Davenport said after the committee meeting.
There were 456 petitions for minor guardianship in fiscal year 2012 – a number she expects to be similar for FY 2013 – however, it is unclear how many of these cases were contested, she said.
The bill’s current draft states that the proposed guardian must provide “clear and convincing evidence that the child is in need of guardianship.”
Currently, it is possible to have a custody case in the Family Division – such as when parents file for divorce – and a guardianship case in the Probate Division at the same time. Davenport said it is unclear what court is the final arbiter in guardianship disputes when the case is split between courts.
The bill gives the Probate Division the exclusive authority of guardianship matter unless there is an ongoing proceeding in the Family Division relating to that same child’s custody, at which point both disputes would be heard by a Family Division judge.
“One judge should be looking at the custody issue, not two,” Haas said.
