Legal Guardianship

In a child custody case, there are times when a child may have to be taken care of by an adult that is not the child’s parent. This is called a legal guardianship. A couple of common situations in which a child would need a non-parent to take them in are:

  • The child’s parents are deceased
  • The child’s parents are imprisoned
  • The parents of the child are not fit to take care of the child or children

There are many children in California who are under the watch of legal guardians, usually grandparents. It’s not an uncommon arrangement. The court is involved in this process to ensure that the children are placed in the most positive and nurturing environment. The process can be somewhat complicated, but it’s not impossible to become a legal guardian.

This webpage will cover these following topics about legal guardianship in California:

  • Types of guardianship
  • Requesting to be the guardian of a juvenile dependent
  • Who can file for legal guardianship?
  • Rights and responsibilities of a legal guardian in California
  • Differences between a legal guardianship and an adoption
  • Ending a guardianship
  • Do you need a family lawyer?

California Legal Guardianship Rules

In order to become a legal guardian, there are rules that you need to know about. There will be forms involved, leading up to a court hearing. It begins with the Petition for Appointment of Guardian of the Person, form GC-210(P). A family lawyer is highly recommended to help you with this process, as custody issues are tremendously important, but a lawyer is not required.

The California Family Code lays out the rules of legal guardianship[1]:

  • The court can grant guardianship to those who the judge deems suitable
  • Guardians must be able to raise the child with proper guidance and care
  • The child’s best interest must be the top priority in decision making
  • The court is the lone decider of cases where parental custody is seen as detrimental to the child
  • Children, especially those 14 years and older, may address the court regarding their preferences
  • Drug tests may be required

You should certainly hire a family lawyer to help you, if:

  • The child has a lot of assets or property of value
  • You live outside of California
  • The child is involved in other legal cases or part of another ongoing child custody case
  • The child has special needs
  • The child is of Native American ethnicity (either part or whole)

Legal Guardianship | Orange County Family Law Attorney

Types of Guardianship Through Probate Court

There are two types of guardianship in California, through probate court. Sometimes, the court will choose a single person to be both Guardian of the Person as well as the Guardian of the Estate. There are also times when the court will choose two different people. The two types of legal guardianship are:

  • Guardianship of the person – a guardianship of the person is an arrangement in which a child lives with an adult who is not his/her parent. The adult guardian has physical and legal custody of the child. Basically, the guardian will have the same responsibilities that a parent has, such as: food, shelter, clothing, emotional care, medical, and whatever else a child may need to grow up as a proper adult.
  • Guardianship of the estate – A guardian of the estate is responsible for the child’s income, money or any other property given to the minor child, until he/she turns 18. In cases where both parents of the child have died, the court will appoint someone to be the Guardian of the Estate.

Requesting to be the Guardian of a Juvenile Dependent

In cases where the child has been removed from a home with his/her natural parents by a Child Protective Services social worker, this is called a Juvenile Court Guardianship. A child may be removed from the home because of: abuse, neglect, or is in danger. When the child is in this situation, the goal of the court is to reunite the child with his/her parents. However, during this time the child will live in licensed homes, also known as foster homes. If the child is not successfully reunited with the parents, a guardian might be appointed for the child. In re Gloria A.

Who can File for Legal Guardianship?

Legal guardianship is meant to provide care for the minor child until he/she turns 18. Typically, a family member will step up and request to be the guardian of the child. It’s not necessary that the person requesting legal guardianship be related to the child though. Below are the people who can request legal guardianship of the child or children:

  • Grandparents[2]
  • Adult sibling
  • Aunt or uncle
  • Great-uncle or great-aunt[3]
  • Adult cousin
  • A friend of the family
  • Other non-parent persons who the court deems capable of being a good guardian

Rights and Responsibilities of a Guardian in California

When the court appoints a person to be the legal guardian of a minor, the guardian is obligated to provide the same things that natural parents would. The guardian is also expected to make major decisions for the minor child.

The basic responsibilities of the guardian are to:

  • Decide where the child will live
  • Provide medical care for children under the age of 14
  • Determine what school the child will attend and/or any special services for the child
  • Approve the minor’s marriage, with the approval of the court as well
  • Approve the minor enlisting in the military
  • Decide whether the minor can get his/her driver’s license

Ending a Guardianship

A California guardianship can be ended under several conditions, but is not terminated without being approved by the California court. The court decides on termination by regulations provided in state statutes, mainly with the child’s best interests being considered. That natural parent of the child may also petition to have the guardianship ended, if the parents still have some rights over the child.

Here are some reasons that a legal guardianship would end:

  • The child turns 18
  • The child is married, is adopted or dies
  • The guardian becomes extremely ill, incapacitated or dies
  • The guardian is removed by the court
  • The guardian renounces or resigns
  • The minor is emancipated
  • The court decides that the guardian’s assistance is no longer needed
  • The welfare of the child is endangered with the guardian

Do You Need a Family Lawyer?

Whether you’re looking to become a legal guardian or to end a legal guardianship of your child, it would be in your best interests to work with a family lawyer. Since the caring of a child is one of California’s top priorities, the forms are made to be straightforward, but that doesn’t mean everything will be done right by the average person. A family lawyer will make sure that you’re completing all of the correct forms, filing them with the right court, and providing the right evidence at the court hearing. Talk to an attorney who specializes in family issues, like guardianship.

 

[1] Family Law Code § 3040 -3049

[2] Guardianship of Vaughan

[3] In re Kaylee H.