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How Does Your Divorce/Separation Impact Getting Guardianship Of Your Adult Child?

Divorce and guardianship photo

2 new laws were passed recently in Arizona dealing with divorce and guardianship for special needs adult children.  Here’s what you need to know.

NEW LAW #1

Let’s call our couple Ryan and Amanda.  Ryan and Amanda have a son, Jaden, who just turned 18.  Jaden has Down Syndrome.  Ryan and Amanda have been divorced for 5 years.

SCENARIO #1—Ryan and Amanda get along

Now that Jaden is 18, Ryan and Amanda want to file for guardianship together.

The guardianship papers filed by Ryan and Amanda need to lay out the following:

  1. What type of custody of Jaden was awarded to Ryan and Amanda? Presumably, if Ryan and Amanda get along, they probably had joint custody.
  2. Whether Ryan and Amanda are able to work together peacefully to make decisions that are in Jaden’s best interest.
  3. Whether Ryan and Amanda will each make sure to give the other parent equal access to Jaden.

Ryan and Amanda can get appointed as joint guardians for Jaden, with equal authority to make decisions for Jaden.

SCENARIO #2—Ryan and Amanda do not get along.  Amanda was awarded sole custody of Jaden.

Amanda does not want to be co-guardians with Ryan.  Ryan has been flakey and she knows he can’t be trusted.  Ryan and Amanda would be unable to make joint decisions regarding Jaden.  Amanda can put in the guardianship papers that she reasonably believes contact between Ryan and Jaden would be detrimental for Jaden.  Ryan is entitled to present evidence to a judge that Amanda is being unreasonable and that it is in Jaden’s best interest to have contact with Ryan.

In determining whether Ryan should have contact with Jaden, the judge will look at:

  1. How contact will impact Jaden’s health and well-being
  2. How often Ryan currently sees Jaden
  3. Whether Ryan has abused drugs or alcohol or has been convicted of a drug offense.
  4. Whether Ryan has committed an act of domestic violence.
  5. Other factors that the judge deems relevant.

If Ryan has been far from stellar in the parenting department, it is very likely that Amanda will get sole guardianship of Jaden.

What To Know:

  1. If Ryan or Amanda file guardianship papers between Jaden’s 18th and 20th birthdays, then who will be guardian and what contact will be allowed with Jaden will be based on the custodial orders in the divorce.
  1. Amanda and Ryan need to realize that how they handle custody in the divorce may well have a lasting impact on the rest of Jaden’s life.
  1. The new laws can be found in Arizona Revised Statutes Section 14-5316 and 5317.

NEW LAW #2

Let’s say that Amanda gets sole guardianship of Jaden and Jaden passes away 3 years later.  The new law requires Amanda to do the following:

  1. Notify Ryan of Jaden’s death, along with information about funeral arrangements and the place of burial. It is unclear from the wording of the law if Jaden must be buried, or if information regarding cremation falls under this same category.
  1. Let’s say instead that Jaden is in the hospital. Amanda has to notify Ryan that Jaden is admitted to a hospital for more than 3 days.

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