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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Are there any new or recent case laws regarding ending a guardianship

Resolved Question:

Are there any new or recent case laws regarding ending a guardianship in Iowa?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

This depends on what you mean by "new" or "recent." There are always decisions being made, but whether or not these decisions apply to your matter depend on what you are trying to achieve here. Can you please tell me a little more about your matter and what you hope to accomplish?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.
I am trying to achieve: factual information about Law regarding guardianship of a child. Background about our case is that my wife and I are currently the guardians of our grand daughter, a child that lost her mother due to an auto accident. We (the grand parents) pursued guardianship of our grand daughter. The childs father was never married to the mother of the child. We pursued the guardianship because of the fathers background of drugs, alcohol abuse and complete disregard for the law of which I won't go into now. In March of 2012 we the grand parents were awarded guardianship of our grand daughter. The father was given visitation ability. In May of 2012 the father was charged with contemp of court because of his persistent refusal to follow the court ordered terms of the visitations and found guilty. Please note that within the original court order that awarded us the guardianship the judge also required that a guardian ad litem be required to continue monitoring the requirements of the court order and that of the fathers visitation requirements. I wont go into all the details but suffice to say the father continues to be show his lack of concern for the court orders and continues to undermine the well being of his daughter, not physically but most definitely socially and psychologically, not to mention counter any positive / appropriate child rearing we as her grand parents have been concerned with. As of 2/2013 the father pursued by himself and not through a lawyer a motion to end our guardianship. We of course through our lawyer have proposed a resistance to this motion. (the reason the father has no lawyer is that he is not financially able to obtain one after abusing several of them in the past, but that is another issue.)As of last week, the guardian ad litem (who is supposed to be concerned with the well being of this child and has on several occasions attempted conversations with our lawyer about "not the childs well being" but the "rights of the father", disregarding the numerous attempts on our part to get her to see how the father undermines the rules and takes the child to locations not allowed by court order or badger us the grand parents during the start of his visitations. This guardian ad litem has knowing about the fathers latest motion, proposed question to our guardianship. The guardian ad litem wrote in her email to our lawyer " I heard and spoken with XXXXXX regarding new case law making it tougher to have guardianship placed with persons other than parents" and also wrote" While I have not read the new case law, my concern is that the court may be required to cancel the guardianship if this goes to hearing". So, again what I am trying to achieve are the facts of any such case that would be of concern to the court to cancel our current court ordered guardianship.
Expert:  Ely replied 1 year ago.
Thank you for your clarification, friend and I am sorry to hear about your situation.

The primary and driven rule of any guardianship of a minor is "best interest of the child." In re PL, 778 NW 2d 33 - Iowa: Supreme Court 2010, In Interest of CD, 509 NW 2d 509 - Iowa: Court of Appeals 1993.

However, the actual "elements" of what is in the child's best interest are broad. They include but are not limited to: XXXXX XXXXX of the parent, financial stability, indoctrination of the child in the current school and environment, household condition and living condition of the child, other persons living in the house, etc.

In situations such as these, parties in your situation may wish to argue that (1) you have been good guardians, (2) the child deserves stability, and (3) there is no pressing concern to end the guardianship.

But in the end, it is up to the Judge to decide.

You are asking about case law, but case law will not be your "silver bullet" here. Case law exists for a different purpose. Imagine state law like a BRICK WALL, but with holes (ambiguous provisions). As such, case law "fills in" these wholes, like MORTAR.

For example, there is a law that states "You cannot take a dog into a post office." Okay, but what if you have a half-wolf? is this a dog? The state law is unclear. The Court makes a decision that counts as case law that helps to clarify this matter going forward.

Here, the Court always decides in the "best interest of the child," but the decision is made BY THE JUDGE - there is no clarification of any statute needed, so case law really does not apply. You in the case by arguing that it is in the child's best interest to stay with you. This is it - everything else is

I hope this helps and clarifies. Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.
I understand your response and please note that we have approached this case originally with exactly the arguments you mentioned.
The issue at this time is not that "we the grand parents" are looking for a silver bullet as you put it.
We are trying to understand the reason that the GAL has stated that we should be considering to "settle out of court" and give the father more visitation time? The GAL has stated she spoke with the father and she asked him if he got more visitation time would he be willing to cancel/end his current motion to end our guardianship. The GAL said he would be willing to do this. Again though, why is the GAL stating that a new case law exists if she already should know that a case law may not be applicable to the current guardianship. In other words, why does it appear that we are being pressured into settling with the father for more visitation time, instead of us going to court "as we would like to" which would allow us to bring forth the affidavits of others who also know of the fathers issues as well as us bring out in the court the long history of the father? (FYI, the original court order for our guardianship being granted was an "out of court settlement" where the father in fact signed his agreement to us being the guardians).
Expert:  Ely replied 1 year ago.
Thank you for your follow up.

We are trying to understand the reason that the GAL has stated that we should be considering to "settle out of court" and give the father more visitation time?

Because trial is hard on everybody. The GAL may simply wish to avoid trial if necessary, or they may feel that it is better to give the father some visitation as opposed to none at all - the GAL can have a myriad of opinions and reasons for having them. However the GAL's suggestion is simply that - a suggestion. The Court makes the decision as to what to do. The GAL simply makes an argument for what they feel is best, XXXXX XXXXX any other party.

In other words, why does it appear that we are being pressured into settling with the father for more visitation time, instead of us going to court "as we would like to" which would allow us to bring forth the affidavits of others who also know of the fathers issues as well as us bring out in the court the long history of the father?

They GAL may feel that the parent should get some visiting time. Of course, this is their opinion and you are free to disagree and allow the Court to decide. Do not allow the GAL to bully you into anything.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87081
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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