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Legal Guardianship - But I thought she was just helping out!

"Legal guardianship?!" exclaims Jennifer. "No way."

Meet Jennifer. Jennifer is the mother of Jaxon. Arnold is Jaxon's Dad. Jennifer and Arnold broke up a few months ago and are struggling with how to put forward their parenting plan.

Their parenting plan not only includes the various responsibilities that Arnold and Jennifer will each have for Jaxon but will include who cares for Jaxon and when according to a weekly schedule.

Jaxon is now five years old. Since Jaxon was born, Jennifer has relied heavily on the care that Arnold's mother has provided for Jaxon. Her name is Drusilla. Although Jaxon and Drusilla are very close and Jennifer acknowledges this fact, Jennifer has felt that Drusilla has always tried to "muscle in" on her parenting time and parenting responsibilities with Jaxon. Jennifer believes that Drusilla has tried to be a parent to Jaxon rather than just a grandma. 

Why is this important? A person has legal guardianship when they have the legal authority (and the corresponding duties) to care for the personal and property interests of another person. When Jennifer and Arnold were still together everyone, including Drusilla, lived in the same house. Now that Jennifer and Arnold have separated, Drusilla had to find her a place of her own. Arnold has moved in with his new girlfriend. Jennifer lives in an apartment too small to house her, Jaxon, and Drusilla. 

Legal Guardianship is the job of the parent:

On top of all this, Jennifer is furious with Arnold because the reason they separated was that Arnold had an affair with a person at work. Arnold and Drusilla are upset with Jennifer because she has gone through a bit of a party phase since Arnold and Jennifer have separated. Since separation only a few months ago, Jennifer has had three different boyfriends. She also had a 24-hour suspension because of consuming alcohol and driving. Although Jaxon was not with her at the time, Arnold is mortified. The Jennifer he knows would never do such a thing. 

The Family Law Act (came into force on March 18, 2013) does away with the word “custody” in family law matters. The three adults in Jaxon's life have been doing their very best to make things work. The problem is that now Drusilla has applied to be a guardian to Jaxon. Jennifer was just served with court papers last week. Jennifer is so upset and fearful. Although she always respected and appreciated Drusilla's role in Jaxon's life, she never thought that Drusilla would try to become a guardian (thus displacing Jennifer). As it turns out, Drusilla has been keeping a detailed record of how often she has cared for Jaxon. Now Drusilla wants to use that information to support a claim for guardianship.

At Hemminger Law Group Westshore, how have seen numerous clients in Jessica's situation. Sometimes a Grandparent or Aunt or Uncle think they can do a better job of raising a child than the actual parents.

Will Drusilla be successful in her application for legal guardianship of Jaxon? At Hemminger Law Group Westshore we have told Jennifer that we highly doubt it. At the same time, we have recommended to Jennifer that she go to mediation with Drusilla and Arnold to resolve matters rather than head straight to court.

The thing is, according to Jennifer, is that before she and Arnold separated, there was a lot of strengths regarding the loving guidance that Jaxon received not only from his parents but Drusilla. The whole "it takes a village" to raise a child, is something that all three of these adults have lived and believed in when it has come to Jaxon. Things have just gone off the rails relatively recently. 

We are hoping mediation will help this family get back on track. 

What we have told Jennifer is that if Drusilla goes to court, we are confident that Drusilla will not succeed. At the same time, we think that if Arnold, Drusilla, and Jennifer could arrange a plan that will work for all of them, and most importantly Jaxon, they should do so. Don't you think Jaxon will benefit from the major grownups in his life getting along and working together towards a plan rather than being at each other's throats?

The Family Law Act says that the best interest of Jaxon is the only consideration concerning matters of legal guardianship, parenting time, and parenting responsibilities.

By Val Hemminger, lawyer