The Delaware State Courts will be closed on Monday, May 27, 2024 for Memorial Day. Justice of the Peace Court 11 (New Castle County) and Court 7 (Kent County) will remain open 24 hours and Justice of the Peace Court 3 (Sussex County) will be open from 6AM-Midnight (no new cases after 11PM).

Permanent Guardianship Overview

Click Here for an Answer Packet The Definition of Permanent Guardianship

The intent of Permanent Guardianship is to create a relationship between a child and a caretaker which is permanent and self-sustaining and creates a permanent family for the child without having to terminate the parental rights of the child’s parents.

  • Only a relative, foster parent(s) or guardian of the child may serve as a permanent guardian.

A relative is defined as immediate family members, grandparent, aunt, uncle, first cousin, great-grandparent, grand-aunt or grand-uncle, half-brother or half-sister (10 Del. C. §901(20)). However, neither a parent nor step-parent is eligible to file for Permanent Guardianship. A foster parent must have been caring for the child for at least 6 months. A guardian must have held guardianship for at least 6 months.

Included in most Permanent Guardianship Orders is an Order for Custody. Therefore, assuming Custody is also granted, a Permanent Guardian may exercise the same powers, rights and duties respecting the care maintenance and treatment of the child as a parent would. However, unlike a parent, the Permanent Guardian cannot be held liable by a third party for something the child has done wrong simply because he or she is the permanent guardian. The Court also has the right to limit any of the powers and duties granted to the Permanent Guardian.

The Responsibilities of a Permanent Guardian

Assuming the Court places no limitations in the Permanent Guardianship Order, the Permanent Guardian will be responsible for providing for the child both physically and emotionally. The Guardian must provide a healthy and safe living environment, an education and all the necessary and appropriate medical treatment, including but not limited to medical, dental and psychiatric care. Furthermore, the Permanent Guardian will be responsible for making the following decisions:

  • Education;
  • Travel;
  • Medical treatment;
  • Right to marry or enlist in the military;
  • Representation in legal matters;
  • Welfare and upbringing; AND
  • Where the child will live.

The Responsibilities of the Child’s Parent after Permanent Guardianship is Granted

Because a parent’s parental rights are not terminated when a non-parent is given permanent guardianship, the Court will determine the following:

  • How much, if any, contact the parent(s) should have with the child after the Guardianship is granted;
  • How much, if any, information about the child the Guardian should share with the parent(s); AND
  • A visitation schedule, if appropriate, so that the parent(s) may spend time with the child.

Once a Permanent Guardianship is granted, a parent MAY NOT petition the Court to rescind (end) the permanent guardianship. A parent may petition to modify a permanent guardianship order as to contact, visitation, or sharing of information.

In addition, the child will continue to have the right to inherit from his or her parent(s) and the parent(s) will continue to have the right to inherit from the child. If the Permanent Guardian wishes to have the child inherit from him or her, then the Permanent Guardian must state that desire in a will. For more information on wills and inheritance rights, you should talk to an attorney. Wills and inheritance rights are not handled in Family Court.

The parent(s) may have to continue to provide financial support to the child. In other words, the parents may be required to pay child support to the guardian.

Child support is handled in a separate proceeding. If the Court grants you guardianship, you must file a separate Petition for Child Support in order for the Court to consider your request for child support.