The difference between California child custody and California guardianship can be complicated because they are essentially the same thing. One distinction is that a California Family Law court grants child custody orders while the California Probate court grants guardianship of a minor child orders.
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California 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.
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.
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.
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.
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.
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For more information on guardianship, click on one of the following links:
California Minor Child Guardianship
California Child Custody Issues
California Child Custody Current Practices