Keeping It in the Family: Minor Guardianship As Private Child Protection

88 Pages Posted: 20 Mar 2019 Last revised: 21 Jan 2020

See all articles by Deirdre M. Smith

Deirdre M. Smith

University of Maine School of Law

Date Written: March 8, 2019


Due to the opioid use epidemic and an overwhelmed public child protection system, minor guardianship is an increasingly important tool for relative caregivers seeking to obtain legal authority regarding the children who come into their care because of a parent’s crisis. Yet minor guardianship originated in colonial law for an entirely different purpose: to protect legal orphans who had inherited property. Today’s guardianship laws are still based on this “orphan model” which does not fit today’s reality. This Article is the first to analyze how these outdated guardianship laws are being used as a form of “private child protection” and to propose changes aimed to serve the needs and interests of families in crisis.

Despite its central role in helping families address the care of children today, the use of minor guardianship for child protection has received remarkably little scholarly examination. This Article aims to fill that gap in three ways. First, it traces the transformation of minor guardianship from a probate tool used to protect orphans’ property interests to its contemporary use as a way to keep children out of foster care and instead address their care within the family. Second, the Article analyzes the implications for children, parents, and relative caregivers of guardianship’s use for private child protection. While families avoid the loss of control and other common problems that accompany involvement in the public child welfare system, family members cannot take advantage of the services and supports that the system can provide. Third, I outline the specific measures that states can and should enact to unlink minor guardianship laws from the “orphan model” and rework them to serve the interests of families in crisis and to reflect the broader policy goals of child protection, including preserving kinship ties.

Keywords: minor guardianship, kinship care, child protection, child welfare, dependency, foster care, family law, parental rights, grandparents, relative caregivers

JEL Classification: K36

Suggested Citation

Smith, Deirdre M., Keeping It in the Family: Minor Guardianship As Private Child Protection (March 8, 2019). 18 Conn. Pub. Int. L.J. 269 (2019), Available at SSRN:

Deirdre M. Smith (Contact Author)

University of Maine School of Law ( email )

300 Fore Street
Portland, ME 04101
United States
207-780-4376 (Phone)


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