New CSA Decision Re: Guardianship of a Child When Parent is Still Living

In Re Guardianship of Zealand W. and Sophia W.

Number 1280

September Term 2013

Filed October 29, 2014

Pursuant to a divorce in 2005 in South Carolina, Father was granted custody of Sophia and Zealand and Mother was granted supervised visitation. 

Father died in December of 2012.  Father's Cousin filed a petition for guardianship in the Circuit Court for Montgomery County.  The court granted temporary guardianship and entered a number of other orders, one finding Mother in contempt for failing to pay for a court-appopinted psychological evaluation.  Mother filed an interlocutaory appeal of several of the orders.

The Court of Special Appeals found that "the circuit court was not authorized, under section 13-702 of the Estates & Trusts Article to appoint a third party as temporary or permanent guardian of the person of either Zealand or Sophia when (1) the children's mother is alive; (2) mother's parental rights have never been terminated; and (3) no testamentary appointment has been made."

The CSA cited In Re Adoption/Guardianship of Tracey K., 405 Md. 82 (2008), saying that "Section 3-702(a) of the Estates & Trusts Article does not allow a circuit court to appoint a guardianship of the person of a minor child where (1) the mother of the child is still living; (2) the mother's rights have never been terminated in this state pursuant to Title 5 of the Family Law Article; and parental rights have not been terminated by any other court.

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