How Do I Get Guardianship of a Minor in Virginia?

Full question:

I am married to the Father of 3 young women, 14, 16 and 17. The girls were originally taken from their mother back in 1999. They went to live in New York with their Father. They all moved into my apartment in July 2000. In October of 2002 their Father and I married and had another daughter in 2003. My husband was granted legal custody in New York City Family Court in 2003. After their mother had tried to regain custody. We have since moved to Virginia and I would like to know how do I become a legal guardian in case of a disability or death of their Father. My husband had an accident at work and made me think I need to be able to take care of them. Their birth mother is in New York never sees them, hardly talks to them and has never paid for anything in over 10 years. Thank-you. These girls have been with me for over 9 years I want to be able to sign legal documents and take care of them if anything should happen to their Father.

• Category: Guardianship
• Date: 04/07/2025
• State: Virginia

Answer:

It is possible to give a power of attorney for care of a minor by private agreement or to file a petition in court to establish a guardianship. A temporary guardianship or standby guardianship may be created for a minor. A parent or other person having physical and legal custody of a minor may file a petition for a guardianship. The standby guardianship petition would instruct the court to act only if a particular event, or condition of mental or physical health, occurs.

For further discussion please see:

http://standbyguardianship.org/national/va.asp

Please see the following VA statutes:

§ 31-15. Custody when parents are separated. —

When any husband and wife live in a state of separation, without being
divorced, and have a minor child of the marriage, any court of record
having equity jurisdiction in, or the juvenile and domestic relations
court of, the city or county in which the child is, or the judge in
vacation, may, in the discretion of the court or judge, upon the petition
of the mother or father, award to the petitioner the custody and control
of the child for such time, under such regulations and restrictions, and
with such provisions and directions, as the case requires and as will
best promote the welfare of the child. In such case or in any other case
in which the parents are living apart, whether partially or absolutely
divorced or not, the court or judge or any court of competent
jurisdiction, in awarding the custody of the child to either parent or to
some other person, shall give primary consideration to the welfare of the
child, and as between the parents there shall be no presumption or
inference of law in favor of either. The court or judge in the
enforcement of its orders may direct its officer to take possession of
the child or children and dispose of them as it directs.

§ 31-8. Custody, care and education of wards; ward's estate. —

Unless a guardian of the person of a minor is appointed by a parent,
the court or the clerk, a guardian of a minor's estate who is appointed
as aforesaid, and gives bond when it is required, shall have the custody
of his ward, except as otherwise provided in §§ 31-1, 31-2, and 31-15.
The guardian of a minor s estate shall have the possession, care, and
management of the minor's estate, real and personal, and, after first
taking into account the minor's other sources of income, support rights
and other reasonably available resources of which the guardian is aware,
shall provide for the minor's health, education, maintenance and support
from the income of such estate and, if income is not sufficient, from
the corpus thereof.

31-5. How appointments made. —

If the minor is under the age of fourteen years, the court or clerk
may nominate as well as appoint his guardian; if the minor is above that
age he may, in the presence of the court or clerk, or in writing
acknowledged before any officer qualified to take acknowledgments,
nominate his own guardian, who, if approved by the court or clerk, shall
be appointed accordingly; but if the guardian nominated by the minor is
not appointed or if the minor resides without the Commonwealth or if,
after being summoned by the court or clerk, he does not nominate a
person deemed suitable and competent by the court or clerk, a guardian
may be nominated and appointed in the same manner as if the minor were
under the age of fourteen years. In no case shall any person not related
to the infant be appointed guardian until thirty days have elapsed since
the death or disqualification of the natural or testamentary guardians,
and the next of kin have had an opportunity to petition the court for
appointment and unless the court or clerk is satisfied that such person
is competent to perform the duties of his office.