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How To Get Guardianship Of A Child Without Going To Court?

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Pro Health Web

How To Get Guardianship Of A Child Without Going To Court? – Guardianship Of A Minor – The guardianship of a minor is a legal protection measure by which another person helps him protect his interests. It is opened when the holders of parental authority (their parents) can no longer exercise it. In this case, the judge constitutes a family council that appoints a guardian and a substitute guardian.

The parents may sign an agreement giving temporary decision-making authority for the child to someone they trust (typically a family member).

How To Apply?

The request can be made on plain paper or using the Cerfa form n°15457:

Request to open a guardianship measure for a minor: request to the guardianship judge

To be admissible, your request must include the following information:

  • Your identity and your home
  • Name, first name, date and place of birth, date and place of death if applicable, last residence of the minor’s father and mother
  • Name, first name, date and place of birth, domicile of the minor(s) to be protected
  • Identity, domicile, and degree of relationship or bond of attachment with the minor of at least 4 people with a view to the composition of the family council: Assembly of parents or any qualified persons responsible under the chairmanship of the protection litigation judge for authorizing certain necessary acts carried out in the name of the person under guardianship

The request must be dated and signed and accompanied by all the documents requested in the notice:

  1. Double-sided copy (both sides) of the minor’s identity document
  2. Full copy dated less than 3 months of the minor’s birth certificate
  3. Copy of the minor’s family record book (and possibly a copy of the divorce judgment)
  4. A full copy of the parent’s death certificate in original
  5. Proof of address of the minor or certificate of accommodation of the applicant
  6. Inventory of assets under private signature (made by the person) or notarized, justifying liabilities and assets
  7. Proof of the organization paying the capital (possibly)
  8. Copy of the opening of a blocked account for the minor child

You must file it or send it, with acknowledgment of receipt, to the registry of the guardianship judge of the court responsible for protecting the child’s place of residence.

How Is Guardianship Of A Minor Implemented?

Role Of The Judge And The Family Council

The judge constitutes a family council: An assembly of parents or any qualified persons responsible under the chairmanship of the protection litigation judge for authorizing certain necessary acts carried out in the name of the person under the guardianship of at least 4 members, chosen according to the interests of the child, ensuring if possible that the 2 branches (paternal and maternal) are represented.

The judge decides to convene the family council and presides over it.

The family council is responsible for regulating the general conditions of the maintenance and education of the minor, respecting the wishes that the father and mother may have expressed. It deliberates by majority vote.

To know

The guardian can also contact the guardianship judge to convene the family council. The judge may thus ask him to deliberate, among other things, on the maintenance and education of the minor and the management of his property.

You can make your request using the following form:

  • Request to convene the family council of a minor

You must file it or send it to the registry of the court’s guardianship judge responsible for the child’s place of residence to be protected.

Where To Contact?

  • Judicial court
  • Choice of tutor

The last living parent may have designated the guardian by will or declaration before a notary.

If this is not the case, the family council appoints one or more guardians from among its members. He chooses an ascendant (grandparents) as a priority.

If no ascendant or person is close to the child, he chooses a distant family member.

In the family council, the guardian does not vote.

To know

If no one can provide guardianship, it is entrusted to the department’s services. Guardianship is then exercised without a family council or subrogated guardian.

Choice And Role Of The Subrogated Guardian

The family council must choose a substitute guardian. If the guardian has been selected from among the members of one of the branches of the minor’s family, the subrogated guardian is, if possible, chosen from the other branch.

He is responsible for monitoring the management of the guardian and representing the minor if his interests contradict those of the guardian.

If he notices any faults in the management of the guardian, he must immediately inform the judge responsible for the guardianship of minors.

Over 16 years old

Upon simple request to the judge, the minor can obtain a family council meeting. For example, to express his opinion on decisions that concern him.

The request must be made by mail (simple).

The minor may attend council meetings in an advisory capacity unless the judge considers his presence contrary to his interests.

Under 16

At his request and if he is capable of discernment (ability to understand a situation), and unless there is a reasoned (explained) opinion to the contrary from the judge, the minor can obtain a family council meeting. For example, to express his opinion on decisions that concern him.

He may attend council meetings in an advisory capacity unless the judge considers his presence contrary to his interests.

What Are The Remedies Against The Establishment Of Guardianship Of A Minor?

Cancellation Of A Deliberation Of The Family Council

A deliberation of the family council may be contested by the guardian, the substitute guardian, or the members of the family council within 2 years following this deliberation, or the discovery of the fraudulent actions that enabled this deliberation.

Lawsuit

Within 5 years of reaching the age of majority, an adult placed under guardianship during their minority may initiate legal action against the guardianship bodies (judge, registrar, family council).

This action is possible if he deems them responsible for the damage resulting from any fault in exercising their function.

Conditions For The Guardianship Of A Minor Child

Under article 389 of the Civil Code (as amended by the law of 04/29/2001), the appointment of a guardian is only provided for in 3 cases: when the fathers and mothers are:

  • deceased,
  • legally unknown,
  • “in the lasting impossibility of exercising parental authority.”

This last hypothesis covers the situation of children whose parents have disappeared for a long time or are in a state of health, making it manifestly impossible to exercise parental authority (judicial prohibitory measure, prolonged minority, coma, placement for reasons of health, long prison sentence). The Court of First Instance notes this lasting impossibility of exercising parental authority.

This amounts to saying that as long as one of the parents (the person whose filiation is legally established) can exercise parental authority, there is no reason to develop guardianship (e.g., when only the maternal filiation is established when one of the two parents is alive and capable of exercising parental authority, etc.).

The guardian is designated either by the parents’ will or by the justice of the peace of the minor’s domicile or residence. The guardian must then care for the minor, educate him, and manage his property as a good father. He will also represent the minor in specific acts of civil life, but some of them (give, sell, mortgage or pledge the minor’s property, mortgage or pledge the minor’s property; renounce to an inheritance or to accept it, to continue a business, etc.), he needs authorization from the justice of the peace. The legal guardian, therefore, has the prerogatives of parental authority, with specific control mechanisms that are more sustained than within the framework of the parent’s obligation to be accountable to the child’s majority.

In cases where there is a matter for guardianship, its organization and supervision are the responsibility of the justice of the peace of the dwelling (or failing that of the residence) of the minor. Suppose the justice of the peace can’t appoint a guardian for a minor. In that case, he may appeal to the Public Center for Social Action, which will designate within its council a person who will represent the CPAS in the exercise of guardianship—parental authority over the minor.

In what cases can a minor be placed under guardianship?

A minor child is placed under guardianship in the following cases:

Both of his parents died

His parents are both subject to a withdrawal of parental authority

He has no father or mother

When should we ask the judge to open guardianship?

You can request the opening of guardianship in the following cases:

Both parents of the minor are deceased

Both parents of the minor are not able to watch over him

 

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