Wednesday, October 14, 2015


    There are several different kinds of probate cases which may be helpful in assisting you caring for your various family members.  The most common is a guardianship, which can be used for people of all ages.  With guardianship, the guardian has the same decision-making authority that is best known in custody cases.  If a person is under the age of eighteen (18), they are required to have somebody acting and making decisions in their best interests.  Anybody can be designated as a protected person’s guardian, provided that they are over twenty-one (21) years of age.  A familial relationship is helpful, but not required to be appointed.  After appointment of a guardian is requested, the Court will appoint a Court Visitor to meet with the protected person and proposed guardian, as well as make contact with any doctors, therapists, teachers, etc. who are regularly involved in the protected person’s life.  After completing their investigation, the Court Visitor will file a report with the Court, making recommendations regarding the proposed guardianship.  The Court will hear testimony of the parties and review the reports, and enter orders according to the protected person’s needs and best interests.

   Guardianships are most often used when a child has been left with a relative or friend, either temporarily or permanently, with the permission of the parents.  Guardianships ARE NOT to be used in lieu of a custody case.  If the parents are not in agreement with the arrangement, then the moving party must get residential custody and decision making authority by filing an “Allocation of Parental Responsibilities” case with the District Court.  There are two ways to obtain a guardianship over a minor child.  The first way is for the proposed guardian to show that the parents agree with the proposed guardianship.  The best way to do this is by having the parents, especially the custodial parent, sign a Power of Attorney.  This document expressly gives a certain person authority to act on their child or children’s behalf.  The second way to obtain guardianship over a minor is to show that both parents’ have abandoned the subject child or children.  The Court generally requires several months of no contact or support in order to find that a parent has abandoned the child.

   Both parents and/or custodians must be given notice of the guardianship proceedings.  If the parents’ location is known to the proposed guardian, then that person must have the parents personally served.  This means that the original documents requesting guardianship must be delivered in person by a person who is eighteen(18) years of age or older and not personally involved in the case;  it is best to choose a person who is not a relative and who will not be called to testify.  The El Paso County Sheriff’s Office – Civil Division, located next to the main courthouse, just north off of Tejon Street;  they will serve a party for a small fee and mail you the Notice of Service for filing with the Court.  If a parent or custodian’s whereabouts are unknown, the proposed guardian can obtain permission to publish notice of the pending case, after showing the Court what efforts have been made to locate the person.  Once the permission to publish is granted, the proposed guardian needs to have notice of the case and the upcoming hearing posted in a newspaper in the town where the party is believed to last reside.  Publication needs to be done three (3) times over the course of three (3) weeks.  If the party then fails to appear, the Court can proceed without them. 

   If you would like to schedule a consultation or need help with your divorce, adoption, guardianship or  parental issues call us 719-638-8877 or visit our website

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