Guardianship

Guardianship is a legal relationship created between two parties.  Once done, the guardian will have the authority, and corresponding duty, to care for a person and their property interests.   The individual cared for by the guardian is called a ward.

You can seek appointment as a guardian if you are not the child’s parent.  However, to be appointed as guardian of a child, you must be willing to care for and tend to the child’s needs or property interest.

Guardianship is a court orders granting someone, other than the child’s parent to have custody of the child and/or to manage the child’s property.

Guardianship is established by a California Probate court order that legally places a child in the care of a guardian.  The child lives with the guardian who has physical custody of the child.  During this time, the biological parents do not have custody as their rights are suspended.  But, they still have their parental rights which are not terminated by the guardianship.  A California Probate court guardianship order supersedes a California Family Law court custody order because the guardian has the right to act on behalf of the child.  During this time, the parent’s rights are legally put on hold.

California Guardianship Under the Family Code

California minor child guardianship can be granted to a non-parent under California Family Code if the judge finds that leaving the minor child in the custody of the parent would be detrimental, and placing custody with the non-parent is in the best interest of the minor child.  Detriment is defined as anything that would have a harmful effect on the minor child as a result of removing the minor from the care, custody and control of a person that has assumed the day-to-day responsibilities of a parent.

California Guardianship Under The Probate Code

California minor child guardianship can be granted to a non-parent under California California Probate Code if the minor child is declared free from custody and control of one or both parents.  The guardian can petition for the adoption of the minor child once there has been in effect a two-year period of guardianship.  To have a minor child removed from the care, custody, and control of the parents, a judge must find that that neither parent has legal custody of the minor, the minor child resides within the physical custody of the guardian for a period of at least two-years, and the minor child would benefit from being adopted by the guardian.  Benefit to the minor child is determined by the relationship between the minor child and the parents, the relationship between the minor child and the guardian, and the relationship between the minor child and any siblings.

Guardianship and Third-Party Custody (Grandparents and Relatives)

There are often times when neither biological parent can care for their child and it becomes necessary to appoint a third-party as guardian or custodian of the child.  The terms “guardianship” and “third-party custody” are often used interchangeably.  It is important to note that a guardianship and third-party custodianship does not terminate the parental rights of the biological parents.

The differences between California Guardianship and California Third-Party Custody include:

• Guardianships are filed in a California Probate Court and the potential guardian must prove that the parents are unfit, unwilling or unable to care for the child.
• A guardianship requires an annual reporting to the Probate Court as to the well-being of the child.
• A legal guardianship remains in place unless a parent petitions for the guardianship to be set aside.  The court must then find that the biological parent is now fit, willing and able to care for the child, and it is in the best interests of the child that the guardianship be set aside.
• Third-Party Custody petitions are filed in a California Family Law Court.
• Third-Party Custody petitions may only be brought when a divorce or other custody proceeding is already pending.
• A potential third-party custodian must prove that each parent is unfit, unsuitable or unable to be custodian, or the welfare of the child requires, and it is in the best interests of the child to be placed in the care of the potential custodian.
• Third-party Custody does not require annual reporting to the court.
• A judgment for Third-Party Custody remains in effect until modified by a California Family Law Court.
• Modification of Third-Party Custody requires showing that a change in circumstances of the child or the custodian has occurred and that a modification is necessary to serve the best interests of the child.

Guardian Ad Litem

A guardian ad litem (GAL) can also be referred to as Court Appointed Special Advocate (CASA).  These individuals are the voice of the child in court.  Once appointed, the guardian ad litem may represent the child in a court proceeding.  Judges often adhere to any recommendations given by the child’s representative.

Child Custody

An award of guardianship will affect child custody – the rights of a parent to raise and control their child.  Under a guardianship, parental rights are limited.  While the guardian will have the right to make decisions regarding the child’s care, the parents will be permitted to have reasonable contact with the child.

Guardian of a Juvenile Dependent

A California Juvenile Dependency Court may declare that the parents of a minor child pose a danger and that a guardian needs to be appointed.  A California guardianship can occur in six, twelve, or eighteen months after a minor child has been removed from the parents’ home.

During the interim period, a California child welfare agency will prepare a permanent plan and the California Juvenile Court will prepare an individual permanent report for the minor child. If the California Juvenile Court determines the child cannot return safely to the parents, an adoption, guardianship, or long-term foster care plan will be established.

The parents, minor child’s other relatives, foster parent, and other interested party who may qualify for California guardianships may attend the hearings to argue why they believe they should be granted guardianship of the minor child.  The minor child may even testify during the hearing to state which parent they believe is the best for California guardianship.

A California guardianship require an in-home inspection of the guardian’s home which is done by the child welfare agency.  Additionally, the guardian will likely have to meet with the judge who made the decision, and still qualify for guardianship after other interested parties and the parents have given their opinions.  However, once the guardianship hearing is underway, a parent or interested parties my not contest the issue any farther.

Removal of California Guardianships

A California guardianship may be removed at any time if a California Court determine it is in the best interest of the child.  Also, any child who is 14 years or older may ask the court to change their guardian. The California court will then investigate what duties the guardian has performed and what the best interests of the child are to arrive at a decision.  All California guardianship ends when the minor turns 18, is adopted, gets married, or becomes legally emancipated otherwise.

Guardianship Rights

Parents are the legal guardians of their children at birth and continue to be so until a California Probate court order names someone else as guardian.  A non-parent guardian has the same rights as a parent.  Their rights include; applying for and authorizing medical care and making decisions for the child’s social and extracurricular activities.  They may also interact with the child’s educators to make educational decisions.

The guardian of a minor child may be entitled to make the following decisions:

• Where the minor child is to reside;
• Medical care for a minor child who is under the age of 14;
• The school the minor child will attend;
• When the minor child can obtain a driver’s license.

Guardianship Termination

Parents can voluntarily award guardianship of a child to another individual should they not be able to care for their children themselves.  When this is done, the parent usually has included in the court order a right to revoke the guardianship which can be done in a subsequent petition to the court.  Parents can award guardianship on a permanent or temporary basis.  Temporary guardianships usually have a time limit imposed by the probate court.  At that time, the parent and guardian must either renew the guardianship arrangement or it automatically terminates.

California Foster Care

In California, The Department of Child Social Services can remove a child from the home should it be determined that the child is at risk of injury, abuse or neglect.  Child Protective Services will apply for emergency orders seeking to place the child in foster care.  Should the problem which created the risk to the child not be corrected, the State of California can then terminate parental rights so that another family can assume guardianship of the child or adopt the child.  The child remains in state custody until parental rights are terminated and guardianship rights are ordered.

Guardianship, Child Custody, Foster Care are important topics to consider before going to Court regarding your matter.  An appointment with a licensed, skilled attorney can help you make a decision on regarding your court case.

Adoption

When a child is adopted, the parental rights of the child’s parents are terminated.  The legal relationship between the adoptive party and the child is permanent and is treated exactly the same as if the child was born to that party.  An adopted child inherits from his or her adoptive parents, just as a child would.

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