TITLE 13

Domestic Relations

CHAPTER 23. GUARDIANSHIP OF A CHILD

Subchapter V. Permanent Guardianships for Children


Permanent guardianship models the requirements of "legal guardianship" under the Adoption and Safe Families Act of 1997, Public Law 105-89, § 101(b), 42 U.S.C., § 675(7). Permanent guardianship is intended to create a relationship between a child and caretaker which is permanent and self-sustaining, and which creates a permanent family for the child without complete severance of the biological bond.

73 Del. Laws, c. 150, § 1.;

A relative, foster parent, or guardian may serve as permanent guardian of a child and may petition the Family Court for a permanent guardianship order regarding a child not his, hers or theirs. DSCYF, the Division, a licensed agency or guardian ad litem may petition the Family Court for a permanent guardianship order so long as the proposed permanent guardian or guardians consent to the appointment.

73 Del. Laws, c. 150, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 360, § 6; 79 Del. Laws, c. 246, § 1.;

A petition for permanent guardianship shall contain all of the information required by § 2322 of this title, as well as the following information:

(1) The grounds for the granting of an order of permanent guardianship; and

(2) A statement outlining prior efforts to place the child for adoption, if applicable.

73 Del. Laws, c. 150, § 1.;

(a) The Court shall grant a permanent guardianship if it finds by clear and convincing evidence that:

(1) One of the statutory grounds for termination of parental rights as set forth in § 1103(a) of this title has been met;

(2) Adoption of the child is not possible or appropriate;

(3) Permanent guardianship is in the best interests of the child;

(4) The proposed permanent guardian:

a. Is emotionally, mentally, physically and financially suitable to become the permanent guardian;

b. Is a foster parent or guardian who has been caring for the child for at least 6 months or held guardianship for at least 6 months at the time of the filing of the petition or is a relative;

c. Has expressly committed to remain the permanent guardian and assume the rights and responsibilities for the child for the duration of the child's minority; and

d. Has demonstrated an understanding of the financial implications of becoming a permanent guardian;

(5) If the child is age 14 or over, the child consents to the guardianship or, if the child does not consent, just cause why the guardian should be appointed; and

(6) If the proposed permanent guardian is a foster parent or parents:

a. The child is at least 12 years of age; or

b. The proposed permanent guardian is the permanent guardian of 1 of the child's siblings; or

c. The child receives substantial governmental benefits for a serious physical and/or mental disability which would no longer be available to the child if parental rights were terminated and/or if the child was adopted.

(b) If the Court determines that the elements of subsection (a) of this section have been met, the Court shall then also determine by a preponderance of evidence, the nature and extent, if any, of any contact, sharing of information, and/or visitation between the parent and the child. In making such a determination, the Court shall apply the best interests of the child standard.

(c) The parent or parents may voluntarily consent to the permanent guardianship provided the elements of subsection (a) of this section are met.

73 Del. Laws, c. 150, § 1; 73 Del. Laws, c. 360, § 2; 79 Del. Laws, c. 246, § 1.;

A social report covering the factors enumerated in § 2353 of this title shall be prepared by a licensed child-placing agency retained by the petitioner and provided to the Court no later than 1 week prior to trial.

73 Del. Laws, c. 150, § 1.;

The provisions of § 1107 of this title shall apply to hearings on permanent guardianship petitions, with references to termination of parental rights being replaced by reference to permanent guardianship where appropriate.

73 Del. Laws, c. 150, § 1.;

(a) The Court shall issue an order regarding permanent guardianship within 30 days of:

(1) The final day of trial; or

(2) The filing of the petition and social report in cases based upon the consent of all parties.

(b) If the Court grants permanent guardianship, it shall include in that order provisions regarding visitation by the child with the child's parents, contact by the child with his or her parents, and the sharing of information to be provided to the parents about the child, all based upon the child's best interests.

(c) The order granting permanent guardianship may prohibit visitation, contact or information if such prohibition is in the child's best interests.

(d) The order granting permanent guardianship may incorporate an agreement reached by the parties.

73 Del. Laws, c. 150, § 1; 70 Del. Laws, c. 186, § 1.;

A permanent guardian shall have the same powers and duties as set forth in § 2340 of this title.

73 Del. Laws, c. 150, § 1.;

(a) While a permanent guardianship is in effect, the parent shall have the following rights:

(1) Visitation, contact and information, to the extent delineated in the permanent guardianship order issued by the Court. A parent may petition the Court for specific enforcement of provisions of the order granting permanent guardianship relating to contact, visitation or information;

(2) Inheritance by and from the child; and

(3) Right to consent to termination of parental rights and/or adoption of the child.

(b) The parent shall have the primary responsibility to support the child financially.

(c) In the event the income and assets of the parent qualify the child for governmental benefits, the benefits may be conferred upon the child with payment to be made to the permanent guardian. The provision of necessities by the permanent guardian shall not disqualify the child for any benefit or entitlement.

(d) If the child has been in the custody of DSCYF immediately prior to the entry of an order for a permanent guardianship, DSCYF shall have no further duty of support or care for the child after establishment of the permanent guardianship unless DSCYF agrees in writing to that support.

73 Del. Laws, c. 150, § 1; 79 Del. Laws, c. 246, § 1.;

(a) Termination. — Except as otherwise specified in this chapter, permanent guardianship of a child terminates:

(1) Upon the permanent guardian's death;

(2) Upon adoption of the child;

(3) When the child reaches the age of majority; or

(4) As otherwise ordered by the Court.

(b) Modification. — Except as otherwise specified in this chapter, an order of permanent guardianship may be modified regarding contact, visitation or sharing of information only upon a finding:

(1) That there has been a substantial change in material circumstances; and

(2) That modification is in the best interests of the child.

(c) Rescission.

(1) An order of permanent guardianship may be rescinded only upon a finding:

a. That there has been a substantial change in material circumstances; and

b. That rescission is in the best interests of the child.

(2) A parent may not petition the Court to rescind a permanent guardianship once granted under this chapter.

(3) Where the permanent guardianship is rescinded by the Court, custody of the child shall not automatically revert to the parent. At any subsequent hearing, the parent shall be considered with no greater priority than any other person or agency, and in entering any further order regarding the child the Court shall apply the best interests of the child standard.

(4) If the permanent guardianship is rescinded, and DSCYF held custody immediately prior to the entry of the order, custody shall revert to DSCYF.

(d) Upon a showing by affidavit of immediate harm to a child, the Court may temporarily:

(1) Stay a permanent guardianship order on an ex parte basis pending a hearing and grant temporary custody of the child to DSCYF or temporary guardianship to petitioner; and/or

(2) Stay the visitation, contact or information provisions of a permanent guardianship order on an ex parte basis pending a hearing.

73 Del. Laws, c. 150, § 1; 79 Del. Laws, c. 246, § 1.;