Close this search box.

Grandparent Guardianship Order Reversed

Print Article
Grandparent guardianship

We regularly talk with grandparents who are distressed about how their grandchildren are being raised. Wouldn’t it be better, they ask, if the child could live in a stable, loving home? Particularly in those cases where they have been raising their grandchildren for years already?

Parents’ rights

Our usual answer: not unless both parents agree, or they are hopelessly incapable of parenting. The question isn’t usually whether your grandchild would be better off with you. It’s whether you can show that they are in real danger living with one or the other (or both) of their parents.

That’s because our legal system — for better or worse — recognizes the rights of parents before focusing on their children’s “best interests”. Only after a finding of parental unfitness can a grandparent guardianship be ordered — at least in cases where the parents do not agree.

Consider a recent Alaska case. Kyle Barron (not his real name) is twelve years old. His mother and father separated in 2010, and his mother was awarded custody. She moved to Alaska to live with her parents, who helped take care of Kyle.

Kyle’s father, meanwhile, moved to New York. He remarried, and he and his new wife had a daughter together. Though he had been less responsible while married to Kyle’s mother, he now has a job and stability.

Kyle’s mother also remarried, and also had a second child. She, however, moved out of her parents’ home two years ago in order to enter an alcohol rehabilitation program in Arizona. She left Kyle (and Kyle’s younger sister) with her parents in Alaska.

Kyle’s grandparent guardianship petition

After Kyle’s mother went into treatment, his grandparents kept him in their home. Kyle has a diagnosis of Asperger’s Syndrome, and has a close relationship with his younger half-sister; his grandparents decided to seek a grandparent guardianship.

Kyle’s father received notice of the petition. He had not been aware of his ex-wife’s alcohol treatment until shortly before the petition, and he had not seen Kyle in person for years. But he felt that he was the proper person to take care of his son. He filed an objection to the guardianship, and asked the probate court to dismiss the proceedings.

The Alaska probate judge decided that Kyle’s grandparents’ petition should not be dismissed. After Kyle’s father and both grandparents testified at a court hearing, the probate judge ruled in favor of the grandparents. He found that Kyle’s father had not abandoned him, and that the grandparents had not proved that Kyle’s father was an unfit parent. Still, the judge ruled, moving Kyle to New York to live with his father would be “detrimental” and “devastating” to Kyle. He approved the grandparent guardianship.

Kyle’s father appeals

The Alaska Supreme Court reviewed the probate judge’s decision recently, and overruled him. The state’s high court was clear: unless Kyle’s father’s parental relationship had been “terminated or suspended” (in the language of the Alaska statute), the probate judge had no business moving to the second question about what might be best for Kyle.

The ruling follows an extensive recent history of cases in other jurisdictions. The courts have been consistent: the right of a parent to raise his or her children is very strong. It can only be overcome by a showing of unfitness or, as the Alaska statute says, proof that the parental relationship has been “suspended by circumstances.”

But what circumstances might qualify? The Alaska high court looked to a 1993 Idaho Supreme Court decision on grandparent guardianship. The Alaska judges ultimately agreed with Idaho that the phrase means “some set of circumstances which deprives a parent of the ability to accept the rights and responsibilities of parenthood.” Because Kevin’s grandparents could not show that his father fit into that definition, their guardianship petition should have been dismissed. Michael W. v. Brown, November 2, 2018.

And in Arizona?

Alaska is a Uniform Probate Code (UPC) state. That means it adopted a version of the law promulgated by the Uniform Law Commission. Arizona is also a UPC state. So, for that matter, is Idaho. All three states have very similar language about when a guardian can be appointed for a minor.

Idaho, interestingly, changed its statutory language after the case that the Alaska court referenced. But the changes were to further elucidate the kinds of things that might amount to a suspension of a parent’s relationship. The list includes neglect, abandonment, abuse and the inability to provide a stable home environment. Those are exactly the kinds of things contemplated by the Alaska court in this recent case — and the Arizona courts would likely agree.

In fact, Arizona’s Supreme Court addressed much the same question over four decades ago. The ruling in Morales v. Glenn (in 1977) agreed with the outcome in the Alaska and Idaho cases. Before a grandparent guardianship can be granted, the court must find that the parents’ rights have been suspended or terminated.

Of course, parents frequently agree to let grandparents (or others) raise their children, often for limited time periods. That, according to Arizona’s courts, amounts to a voluntary suspension of the parental relationship. But when a parent objects to the guardianship, a grandparent will ordinarily have to establish abandonment, neglect, abuse or some other inability — not just that it might be better for their grandchild to live with (or continue to live with) them.

2 Responses

  1. If my step mom has conservatorship over me and I leave the state will it terminate the conservatorship

    1. Talk to a lawyer in your state. The answer will vary from state to state, and your circumstances might make it even harder to guess/predict the right answer.

Stay up to date

Subscribe to our Newsletter to get our takes on some of the situations families, seniors, and individuals with disabilities find themselves in. These posts help guide you in the decision making process and point out helpful tips and nuances to take advantage of. Enter your email below to have our entries sent directly to your inbox!

Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.