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Guardianship of Children by ALICE SCOTTHYATT *

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Guardianship of Children by ALICE SCOTTHYATT * Guardianship of Children by ALICE SCOTTHYATT * In this country the principle is jirmly established that every ceptions? contains only brief genera1 child needs to have someone legally responsible for him. All references to the subject. In legal the States have made provision in law for the appointment of literature, a summary of important legal guardians for children. In the following article, based on case rulings and State laws is pre- a longer report.1 the Children’s Bureau reports on a study of sented in the article, “Guardian and guardianship policies in selected areas in six States and oglers Wards,” in 39 Corpus Juris Secundum. recommendations designed to serve the States as a basis for set- The recently published (1946) Model ting standards, revising legislation, and improving their service Probate Code, prepared by the re- to children in guardianship. search staff of the University of I&ich- igan Law School in cooperation with a HE Children’s Bureau undertook children are becoming eligible for committee of the American Bar Asso- the study of guardianship with financial benefits under social security ciation, contains a section on guard- T three major objectives in mind. and veterans’ legislation; to ensure ianship. The first was to discover the circum- that payments are used for the chil- stances under which guardianship is dren’s benefit, safeguards are increas- Nature of Guardianship necessary and desirable for children; ingly necessary-especially when the The idea of guardianship is to sup- the second, to ascertain the proce- children are not living in their paren- ply continuous, responsible manage- dures by which guardianship can be tal homes. Of the hundreds of thou- ment for the child who needs it “by provided most effectively for children sands of children now receiving reason of minority.” The statutory who need it; and the third, to deter- monthly benefits from these pro- definition of this phrase is practically mine what judicial and social services grams, an estimated tenth do not the same in all States. It embraces are needed to protect children ade- have a parent or legal guardian to re- all children below the age of 21 who quately while under guardianship. ceive the payments for them. In have not married or otherwise been lawfully emancipated. most instances the payments are Need For Guardianship made to the persons who happen to In all States the responsibility of be caring for them. And finally, guardianship belongs to parents in the The idea of the study goes back to public welfare agencies of the States first instance. In all but a few States the pioneering researches done by and of local communities are taking the father and the mother are consid- Sophonisba P. Breckinridge and her more responsibility for children: to ered joint and equal guardians of the students at the University of Chicago clarify public responsibility, greater child born in wedlock and the mother School of Social Service Administra- attention must be given the legal is considered the sole guardian of the tion. Through these earlier studies status of children. child born out of wedlock. and through reports and questions Parental guardianship is called nat- coming direct from States and local These matters-the care of children ural guardianship. Yet it is not an communities, the Children’s Bureau outside parental homes, the protec- absolute right of the parents but a has long been aware of the need for tion of their funds, the assumption trust which must be exercised at all special attention to problems related of public responsibility for them-all times for the child’s benefit. It must to the guardianship of children. frequently involve questions of guard- yield to the child’s interests and wel- ianship. This fact was borne out in fare. And it must confine itself to Problems that have long existed informal discussions with other Fed- have been joined by others growing matters pertaining to his person. eral agencies, particularly those han- If the child acquires property, if he out of recent developments. As a re- dling social security and veterans’ sult of war casualties and postwar loses his parents, or if his parents can- benefits, and in exploratory visits to not discharge the functions of guard- disturbances of family life, for exam- several States during the preliminary ple, great numbers of children have stages of the study. 2 Mary Stanton, The Administration Of been separated from their parents, the Law of Guardian and Ward With Spe- The experience of the agencies in cial Reference to Minors. (Doctor’s with consequent increased need for Washington and in the States visited their care and supervision away from thesis, unpublished, Universtty of C?& indicated that the handling of ques- cage.) home. Then, too, more and more tions of guardianship is much handi- Hasseltine Byrd Taylor, Lau, of Guard- capped by lack of first-hand informa- ian and Ward. Chicago: University of *Chief, Special Services Branch, Social Chicago Press, 1935. Service Division, Children’s Bureau. tion concerning guardianship proced- Sophonisba P. Breckinridge, The Family 1 Guardianship: A Way of Fulfilling ures and practices. Though guard- and the State, select documents. Chi- Public Respons(bility to Children, by Ir- ianship is an old subject, it seems that cago: University of Chicago Press, 1934, vine Weissman in association with Laura its study has been generally neglected pp. 282343. Storzenberg, Harry S. Moore, Jr., and Grace Abbott, The Child and the State, Robbie W. Patterson. Children’s Bureau both by social workers and by lawyers. select documents. Chicago: University Publication No. 330, 1949. 203 pp. Social work literature, with few ex- of Chicago Press, 1933. Vol. II. 10 Social Security ianship in accordance with the stand- local jurisdictions in each of six Guardianship of the Person ards of child care and protection de- States. Many children grow up in a kind manded by society, it becomes the The States selected were Califor- of second-class status because their duty of the State as parens patriae to nia, Connecticut, Florida, Louisiana, parents are dead or incompetent and protect the child by supplying him Michigan, and Missouri. Their selec- no one else is legally authorized to act with a supplementary or substitute tion was influenced by considerations as their personal guardians. form of guardianship. of geographical location, statutory We do not know how many children Every State has recognized this re- provisions for guardianship, the court are growing up under these circum- sponsibility toward its children by having jurisdiction, the area served stances, nor can their numbers be making provisions in law for the ap- by the court, and other factors. estimated. No community has avail- pointment of legal guardians for chil- Local communities within the able any accurate information on the dren. Three plans of legal guardian- States include two probate districts of extent of orphanhood and other con- ship are generally provided by State Connecticut-Hartford and Green- ditions that deprive children of the laws. One extends to the person of wich; two judicial districts of Louisi- natural guardianship of their parents. the child, another to his estate, and a ana-East Baton Rouge and Caddo: And no court has available any com- third to his person and his estate. and two county jurisdictions in each plete statistics on the number of chil- The provision of legal guardian- of four States-Los Angeles and Sac- dren currently under legal guardian- ship is recognized by law to involve ramento in California, Alachua and ship of the person. various types of services to be fur- Duval in Florida, Kent and Muskegon Statistics compiled from court rec- nished by the State to children. The in Michigan, and Cole and Jackson in cords for the year 1945 show that 1,450 State first should determine and des- Missouri. children were supplied p e r s o n a 1 ignate who shall have guardianship Five methods were used in gather- guardians that year by the 12 courts over a particular child; second, it ing information: (1) review of the in the study. These courts serve pop- should make a proper public record laws relating to the guardianship of ulations including nearly 1,350,OOO of the appointment of the guardian minors in each State of the study; (2) children under 21 years of age. Of and maintain that record to show interviews with judges and other court this number, about 142,000 are esti- what happens to the child and his people concerning court organization, mated to live away from home, and property under guardianship; third, policies, and procedures and with law- they possibly need attention with it should oversee and help the guard- yers, public officials, and social work- reference to personal guardianship. ian serve the ward’s best interests ers concerning their contacts with the The appointments, therefore, can and welfare; and fourth, it should court in relation to guardianship scarcely be assumed to be meeting in discharge the guardian, by removal cases; (3) observation of the courts at full measure the local needs for per- if necessary, when his services are no work; (4) reading of court records sonal guardians. longer needed or desirable. and statistical study of cases before That they do not do so is indicated Though some of these services are the court for appointment and dis- by the fact that all courts were found administrative in character and charge of guardians during the entire to concern themselves. with the Per- others judicial, practically all States year 1945; and (5) case studies of a sonal guardianship of children only assign to courts the entire job of ren- small number of children under guar- when petitioned to do so.
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