Parents had voluntarily placed their minor son in the guardianship of relatives. Some years later when the parents sought to terminate that legal guardianship and resume custody of their son, issues arose as to what, if any presumptions operated in favor of the parents’ and what burden of proof applied. The Supreme Court indicated first that a guardianship established by parental consent amounts to an exercise by the parents of their fundamental right to place their child in the care of another to further the child’s best interests and that in the absence of terms in the guardianship order to the contrary the parents are entitled to the Troxel presumption that their later decision to terminate the guardianship is in the child’s best interests. In the view of the Supreme Court, failure to accord fit parents a presumption in favor of their decision to terminate the guardianship established by parental consent would penalize their initial decision to establish the guardianship and deter use of the mechanism as a means to care for the child while the parents address issues that could negatively impact the child.
In a proceeding brought by fit parents to terminate a guardianship established by parental consent, the guardian opposing the termination must establish by a preponderance of the evidence that termination of the guardianship is not in the best interests of the child.
Kathleen Hogan is the author of the Colorado Family Law Practice Series, a 2-volume set covering the practice of family law, and is also the Editor in Chief of the Family Advocate, a quarterly magazine published by the American Bar Association section of Family Law.