Consensual Guardianship

The legal matter of consensual guardianship deals with a parent who consents to allow another person to be the guardian of a child and later revokes that consent. This situation usually arises when a parent is temporarily unable to raise a child (perhaps because of illness, financial problems, or criminal issues) and allows a family member or friend to be guardian. Over the years, the legal system in Arkansas first favored the guardian in these situations, then came to favor the parent, then slightly turned back to favoring the guardian.

Although the Uniform Probate Code (adopted in whole or in part by many states) expressly states that a parent may consent to a guardianship (§ 5-204), the Arkansas guardianship statutes do not expressly address the issue. Nevertheless, Arkansas courts have long recognized the authority of parents to provide such consent, as with, for example, the case of Matter of Guardianship of Markham, 32 Ark. App. 46, 795 S.W.2d 931 (1990). As such, in Arkansas, when both parents consent to a guardianship, the courts will generally allow the person designated by the parents to serve as the guardian.

A question arises when one or both parents then decide they want their children back and ask the court to terminate the guardianship. Until 2017, the guardianship statute provided that “[a] guardianship may be terminated by court order…[if]…the guardianship is no longer necessary or for the best interest of the ward.” The word “or” in the termination statute plays an important role in consensual guardianship cases. The analysis of that word’s meaning in the statute begins in the Arkansas Supreme Court’s decision in Graham v. Matheny (2009). In that case, the Arkansas Supreme Court set forth several clarifications regarding guardianship. One clarification was that the statute was in the disjunctive, meaning the word “or” took precedence in guardianship cases, and a guardianship could be terminated if either one of the following applied: (1) the guardianship was no longer necessary; or (2) the termination of the guardianship (returning the child to the parent) would be in the best interest of the ward (the child).

The next important case on this issue was In the Matter of the Guardianship of S.H. (2012). In that case, the mother had consented to allow the child’s paternal grandparents to be guardians of her daughter, referred to in the opinion as “S. H.” Later, she attempted to terminate the guardianship, but the trial court did not agree with the mother that the guardianship should be terminated. The mother appealed, and on appeal, she argued that the statute, as written, did not adequately protect her constitutional right as a parent to determine how to raise her children.

The Arkansas Supreme Court agreed and announced that if the parent was not deemed unfit at the time the parent consented to the guardianship, then the following test would apply: 1) the parent must put forth evidence that the guardianship is no longer necessary; and 2) once the parent meets this burden, a presumption arises that termination is in the child’s best interest, and the guardians bear the burden of overcoming that presumption.

This swung the pendulum in favor of the parent, because for both prongs of the test, it made it more difficult for the guardians to keep the guardianship in place. The S.H. I opinion did have one wrinkle, though, because it appeared to convert a disjunctive test (the “or” from the statute) into a conjunctive test (the “and” from S.H. I). Stated differently, whereas the statute required that a parent meet only one of the prongs, S.H. I appeared to require a parent to meet both of the prongs.

After the appeal of S.H. I, the trial court applied the new rule and still determined that the guardianship should continue, so the mother appealed again in S.H. II. In the majority opinion in S.H. II, the Supreme Court clarified what a parent has to do to meet the requirements of the two prongs of the test. For the first prong, the Supreme Court held that all a parent has to do to prove that the guardianship is no longer necessary is to revoke consent to the guardianship by informing the court that the conditions necessitating the guardianship no longer exist. For the second prong, the Supreme Court held that in order to continue the guardianship, a grandparent or other guardian would have to prove by clear and convincing evidence (a much higher burden of proof than the preponderance of the evidence standard used in most civil cases) that it would be in the child’s best interest to continue the guardianship.

The Arkansas Supreme Court also addressed the issue of whether the statute is disjunctive (whether the “or” from the statute applies) or conjunctive (whether the “and” from S.H. I applies). The dissent in S.H. II argued that the “or” test should apply, and that a parent should have to meet only one of the prongs of the test. The majority opinion seemed to agree but ultimately held that the “and” applied in this particular case because of a specific procedural issue.

The next relevant case is In the Matter of the Guardianship of W.L. (2015). In that case, the procedural issue from S.H. II was not a problem, and so the Arkansas Supreme Court directly addressed the issue of whether the rule should be disjunctive (“or”) or conjunctive (“and”). The Arkansas Supreme Court held that the test should be disjunctive, meaning that a parent had to meet only one of the prongs of the test to terminate the guardianship. This meant that a parent could terminate a guardianship simply by informing the court that he or she was revoking the guardianship.

The Arkansas Supreme Court’s decision in W.L. settled the controversy of whether the test was disjunctive (“or”) or conjunctive (“and”), but only temporarily. In 2017, the Arkansas General Assembly passed Senate Bill 268, which made only one substantive change to the guardianship statute: changing the word “or” to “and.” Therefore, the test went back from being disjunctive (meaning that the parent had to meet only one prong of the test) to conjunctive (meaning that the parent has to meet both prongs of the test). This change swings the pendulum back slightly in favor of the guardian and away from the parents.

Therefore, it is not yet clear how the Arkansas Supreme Court will interpret this change in the statute. The Arkansas Court of Appeals, however, released an opinion in 2018 that seemed to apply the conjunctive (“and”) test rather than the disjunctive (“or”) test—Morris v. Clark, 2018 Ark. App. 73. Interestingly, this case was not based on the changed statute, but rather on a prior case from the Arkansas Supreme Court that predated the change in the statute—Donley v. Donley, 2016 Ark. 243, 493 S.W.3d 762 (2016). It is likely that this area of law will continue to evolve.

For additional information:
“Guardianship.” Arkansas Legal Services Online. (accessed May 24, 2018).

In the Matter of the Guardianship of S.H. (accessed May 24, 2018).

In the Matter of the Guardianship of S.H. II. (accessed May 24, 2018).

In the Matter of the Guardianship of W.L. (accessed May 24, 2018).

Morris v. Clark. (accessed May 24, 2018).

Andy Taylor
Taylor & Taylor Law Firm, P.A.


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