When the Court Steps In
Arizona does not appoint a guardian for a minor child lightly. The court must first determine that the appointment serves the child's best interest. Beyond that threshold, one of three conditions must exist before the appointment moves forward.
The court may appoint a guardian for a minor if the court finds that the appointment is in the best interest of the minor and that one of the following applies: 1. After being fully informed of the nature of a guardianship appointment, each living parent of the minor consents to the appointment of a guardian.
A.R.S. § 14-5204(A)(1)In the most common scenario, both parents agree to the arrangement. This often happens when parents are unable to care for their child due to health issues, military deployment, or other circumstances and want a trusted family member to step in formally.
The second path applies when parental rights have already been terminated through a separate court proceeding. The third applies to older minors, at least sixteen, who are not the subject of an open dependency case under Title 8. In that situation, the court must find, based on a preponderance of the evidence, that no parent is willing or able to exercise the responsibilities a guardian would carry.
Testamentary Guardians and Court Priority
If a parent named a guardian in their will under A.R.S. 14-5202, that person has priority over anyone the court might appoint. However, priority is not automatic. If the named guardian does not accept the appointment within thirty days of receiving notice, the court can move forward with a different appointment.
A guardian who is appointed by will as provided in section 14-5202 and whose appointment has not been prevented or nullified under section 14-5203 has priority over any guardian who may be appointed by the court but the court may proceed with an appointment on a finding that the testamentary guardian has failed to accept the testamentary appointment within thirty days after notice of the guardianship proceeding.
A.R.S. § 14-5204(B)This is one of the strongest reasons to name a guardian in your will. Without that designation, the court decides who raises your children based on its own assessment. With one, your choice gets first consideration.
