Guardianship of a Minor in Colorado

What Guardianship Is, and What It Is Not

Guardianship of a minor lives in the Colorado Probate Code, at C.R.S. 15-14-201 through 15-14-210. A minor is an unemancipated child under 18. When a court appoints a guardian, or confirms one a parent named, that adult becomes the child's substitute decision maker. The child is then called the ward, which is simply the legal word for a person who has a guardian. Except where the court limits the appointment, the guardian makes the decisions a parent would make about the child's support, care, education, health, and welfare.

Guardianship is one tool among several, and choosing the right one matters.

• Guardianship is not adoption. Adoption makes you the child's legal parent permanently. Guardianship does not. The parents remain the child's legal parents, and adoption of the ward actually ends a guardianship. A guardian cannot even consent to the ward's adoption unless the court specifically authorizes it under C.R.S. 15-14-208(3). If permanence is the goal, an adoption may be the better fit.
• Guardianship is not custody. Custody cases, which Colorado calls allocation of parental responsibilities or APR, run under C.R.S. 14-10-123 in domestic relations court. An APR case divides parenting time and decision making between specific people. A guardianship case instead installs a substitute decision maker through the probate side of the court, without cutting off the parents' legal rights. Our child custody page covers APR cases in detail.
• Guardianship is not conservatorship. A guardian handles the child's person. A conservator is a person appointed by a court to manage a child's money and property. The court's own instructions draw the line plainly: if the minor has income, such as SSI, or owns assets, such as real estate or stocks, a conservatorship may be needed, because guardianship alone is not enough to manage the money.

Here is the guardianship and custody comparison at a glance:

Families reach for guardianship in many situations: a parent has died or become seriously ill, a child is living with a grandparent or another relative, or parents agree that someone else should raise the child for a season of life. Which tool fits depends on the facts, and it is worth talking through with us before anything is filed.

Who Can Be a Guardian, and How Appointment Works

A guardian of a minor must be an individual at least 21 years old. The guardian does not have to live in Colorado, though an out-of-state guardian must also file an irrevocable power of attorney with the court. There are two roads to appointment: a court case, or an appointment by a parent that the court later confirms.

Court appointment

The minor, or any person interested in the welfare of the minor, may file a petition under C.R.S. 15-14-204. That phrase is broad on purpose. Grandparents, other relatives, family friends, and the child's current caregivers can all qualify.

The court may appoint a guardian only if the appointment is in the minor's best interest and at least one of four grounds under C.R.S. 15-14-204(2) exists:

• the parents consent;
• all parental rights have been terminated;
• the parents are unwilling or unable to exercise their parental rights; or
• a previous third party guardian has died or become incapacitated without naming a successor. In that last situation, the statute tells the court not to presume that returning the child to a parent is in the child's best interests.

Consent is the smooth path, and a parent gives it on a simple court form. If a parent does not consent, the petitioner must be prepared to prove at the hearing that the parents are unwilling or unable to care for the child, or that their parental rights have been terminated. That is a serious contest against a parent's wishes, and anyone on either side of one should get advice on their individual situation before the hearing. We can help.

The child's own voice

Colorado gives a child who is 12 or older a real say. Under the courts' procedures, the child must be personally served with notice of the hearing. The child has the right to consent to the appointment or to refuse consent, though the court considers those wishes rather than being bound by a refusal. And if a child 12 or older nominates a guardian, C.R.S. 15-14-206 directs the court to appoint that person unless the court finds the appointment contrary to the child's best interest.

Appointment by a parent

A parent can name a guardian for a minor child in a will or another signed writing under C.R.S. 15-14-202. The appointment takes effect when the appointing parent dies, is adjudicated incapacitated, meaning a court has ruled the parent can no longer make decisions, or is determined in writing by an examining physician to be unable to care for the child. The named guardian then has 30 days to file an acceptance, and must petition the court to confirm the appointment within 30 days after that filing.

The appointment is not bulletproof. Until the court confirms it, the child's other parent, or a non-parent who has care or custody of the child, can block it by filing a written objection under C.R.S. 15-14-203, and a child 12 or older can refuse to consent to it. A parental appointee who is not blocked, or whom the child accepted, has priority when the court makes the appointment. Naming a guardian in your estate plan is still one of the most protective things a parent can do, because it tells the court exactly who you trust.

Emergency and Temporary Guardians

A standard guardianship case takes time, because everyone close to the child is entitled to notice before the hearing. When a child needs protection sooner, C.R.S. 15-14-204 gives the court two faster tools.

• Temporary guardian. On a showing that an immediate need exists and that the appointment would be in the child's best interest, the court may appoint a temporary guardian even before the usual grounds are fully established. A temporary guardianship may not last longer than six months. C.R.S. 15-14-204(4).
• Emergency guardian. If following the normal procedures would likely result in substantial harm to the child's health or safety, and no one else appears to have authority to act, the court may appoint an emergency guardian for up to 60 days, with only the powers spelled out in the order. The court can even act before notice is given, but then notice of the appointment must go out within 48 hours and the court must hold a hearing on it within five days. C.R.S. 15-14-204(5).

There is also an alternative that avoids court entirely for short term needs. Under C.R.S. 15-14-105, a parent or guardian can sign a power of attorney delegating powers over the child's care, custody, or property to another adult for up to 12 months. The delegation cannot cover consent to the child's marriage or adoption. It can fit situations like a military deployment, a medical treatment period, or another extended absence. It does not require a judge, but it also does not carry the authority of court issued letters, so a full guardianship is sometimes still the better answer. Which route fits your family is worth a conversation.

What a Guardian Can and Cannot Do

Once appointed, a guardian steps into a parent's shoes for most everyday purposes. Under C.R.S. 15-14-207 and C.R.S. 15-14-208, and except where the court limits the appointment, a guardian:

• takes custody of the child and decides where the child lives, consistent with any custody order;
• consents to medical or other care, treatment, or services for the child;
• makes the day-to-day decisions a parent would make about support, care, education, health, and welfare;
• applies for and receives money payable for the child's support, and can start proceedings to compel support if no conservator with that authority exists;
• uses the child's money for current needs and conserves any excess for the future, paying it over at least quarterly if a conservator is appointed;
• must stay personally acquainted with the child, act in the child's best interest, and exercise reasonable care, diligence, and prudence.

The limits are just as important:

• No move out of Colorado without permission. The guardian may establish or move the child's home outside Colorado only with the court's express authorization. C.R.S. 15-14-208(2)(b).
• No consent to adoption unless the court specifically authorizes it. C.R.S. 15-14-208(3).
• No self-approved pay. A guardian may be compensated for services, or reimbursed for room and board the guardian provides, only as approved by the court. C.R.S. 15-14-209.
• Ongoing reporting. The guardian must report the child's condition and account for money as the court orders, must tell the court when the child's home address changes, and under the courts' current practice files a yearly report on the child's wellbeing, typically due on the child's birthday or as the appointment order directs.

The statute also protects guardians in fair ways. A guardian is not required to spend personal funds on the child's expenses, and is not liable to third parties for the child's acts simply because of the guardianship. C.R.S. 15-14-209. The court can shape the role too: under C.R.S. 15-14-206 it can create a limited guardianship, restricting the guardian's powers to encourage the child's self-reliance or for other good cause, and it can add or withdraw powers later.

The Process in Practice, and How a Guardianship Ends

Most minor guardianship cases follow a path the Colorado courts have mapped in their self-help materials and standard JDF forms. The details below, including the fee and form numbers, are current as of this writing, and court fees and forms change periodically.

Filing

The petition is filed in the district court of the county where the child lives or can be found. In Denver, the case goes to the Denver Probate Court. The filing fee is $229.00, with one fee covering siblings' cases filed on the same day, though each child gets a separate, confidential case. A fee waiver can be requested from the court. The proposed guardian also files an acceptance of office along with a name-based criminal history check from the Colorado Bureau of Investigation, a current credit report with Social Security numbers redacted, and a copy of a government-issued ID. The checks are required even if there is nothing on your record, the proposed guardian pays for them, and no fingerprinting is involved because the check is name-based.

Notice and the hearing

Notice of the hearing, with a copy of the petition, must go to the people closest to the child: the child if 12 or older, by personal service; each living parent, or the nearest adult relative if no parent is living; anyone who had primary care and custody of the child during the 60 days before filing; anyone the child nominated; any parental appointee whose appointment stands; and any guardian or conservator already acting for the child anywhere. Mailed notice must go out at least 14 days before the hearing, and if someone's address cannot be found after a diligent search, notice runs in a newspaper once a week for three consecutive weeks. At the hearing, the petitioner must appear and show the court that the guardianship is in the child's best interest and that one of the statutory grounds is met, with evidence that the parents consent or that they are unwilling or unable to care for the child. The court can appoint a guardian ad litem, a neutral investigator who reports on the child's best interest, and can appoint a lawyer for the child when the child's interests need separate representation.

If the court grants the petition, it signs an order of appointment and issues Letters of Guardianship, the official document a guardian shows to schools, doctors, and agencies as proof of authority.

How it ends, and how to change it

A minor guardianship ends automatically when the child turns 18, is adopted, becomes emancipated, or dies, or earlier if the court orders it. C.R.S. 15-14-210. The courts describe emancipation in this context as marriage, a civil union, active military duty, or a court's determination that the child is emancipated. One exception runs longer: a guardianship entered under the Special Immigrant Juvenile provision, C.R.S. 15-14-204(2.5), which allows appointments for unmarried young people up to age 21 in certain immigration related circumstances, does not end based on age until 21.

Before then, the guardianship is not frozen. The child, a parent, or any person interested in the child's welfare can petition the court for any order in the child's best interest, including modifying or ending the guardianship, and as of this writing the courts charge no filing fee for a termination petition filed in the original case. A guardian who wants out cannot simply quit, because a resignation does not end the guardianship until the court approves it.

We practice family law across Colorado. Whether you are stepping up for a child who needs you, planning ahead for your own children, or a parent who wants a child back home, reach out and we can talk through where you stand.