Guardianship over a 21 year old

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Latest post Sat, Jun 4 2011 2:05 PM by adjuster jack. 2 replies.
  • Sat, Jun 4 2011 11:03 AM

    Guardianship over a 21 year old

    I am a mom of a 21 year old whom is special needs. I recently was given my divorce and was awarded sole physical custody of minor child with joint legal custody of minor child. Yes, I know he is not a "minor child"...go figure. But, because of his situation that may be why they consider him a "minor". My son graduated high school almost a year before this decision was made.

    I have taken care of him since birth and want to continue to care for him. I have made arrangements for him to go to a daily workshop on a full time basis and we are on a waiting list for him to go. He will go to this workshop on a daily basis and home with me at night. This program is not new to him, he worked there about 4 hours a week during school hours when he was still in school. He is also on a waiting list for a group home (which we are not looking into getting in there for another 5 years if then).

    Since I was awarded physical custody of him just 1 day before his 21st birthday do I still need to go and file for guardianship since he is not a "minor child"? He is not capable of taking care of himself, nor making decisions for himself.(he does have school and medical verification of that) His dad does not want him to go to workshop nor group home, nor even clean his room himself. ( His dad still sees him and treats him like a 2 year old and of course my son LOVES it). I on the other hand, want to see my son work toward becoming as independent as he can be. He is a smart young man with limitations of course. I believe getting him in these programs will give him an opportunity to grow as a man and give him a sense of independence. (supervised of course). He needs that and I know he wants that even though he loves the pampering and babying that he gets from his dad. My son is not a baby and deserves to be given every opportunity available to him to learn to become an "adult." Mind you, as mom I do my share of pampering and fussing over I'm not putting all the blame on his dad.

    That's where I'm finding my concerns. When the time comes for him to go into these programs, will his dad be able to keep my son from going since he has joint legal custody? ( His dad thinks I'm just wanting to "get rid" of my son so why not give him to his dad) Which is far from the truth. My son is with me 24-7.....he is with his dad maybe 3 or 4 days a month. Do I need to file for guardianship? Or since the custody decision was given just 1 day before his 21st birthday does that atomatically give me guardianship?


  • Sat, Jun 4 2011 12:16 PM In reply to

    • kath21
    • Top 25 Contributor
    • Joined on Sat, Apr 18 2009
    • CA
    • Posts 4,451

    Re: Guardianship over a 21 year old

    Since child support is usually paid only up to age 18 in most states (NY can be an exception), I have to assume the judge made these orders a day before his 21st birthday BECAUSE of his disability, meant to last forever.

    You might want to consult with a local attorney for official legal guardianship, as that doesn't seem to be addressed at your divorce....

  • Sat, Jun 4 2011 2:05 PM In reply to

    Re: Guardianship over a 21 year old

    No, I don't think that your divorce give you automatic guardianship.

    And I don't think that the custody awarded in the decree is even valid any more. Your son is 21 and legally an adult and can go where, and do what, he pleases.

    You have to go to court and have him legally declared incompetent to manage his own affairs. However, since it appears that you are also handling your son's financial affairs, conservatorship is likely to be the better way to go or a combination of both.

    Here's some general information that I found on the internet.

    It's from VA but I think the details are probably universal from state to state.

    However, I strongly suggest you consult with an attorney about the best way to go about this.


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