First, I would like to commend you for wanting to become a guardian. If you are here, chances are that you are a grandparent who is extremely frightened for the health and well-being of one or more of your grandchildren. This is no doubt a heartbreaking time in your life because not only are your grandkids in potential danger, it may also mean your own child is in serious trouble as well, which can create its own set of problems and only adds to the grief and conflict you’re already experiencing. Drug addiction, alcoholism, and mental illness are often where the need for a guardian manifests itself.
Also though, it is certainly not unheard of for families to experience extreme financial hardship and find themselves unable to provide for their child’s basic needs. So rather than putting their child through such adversity, parents may seek the help of a trusted relative or friend who can take the child in until they can get back on their feet. In such a case, a Caregiver’s Affidavit may be more appropriate than a guardianship if both parties understand that this is going to be a temporary arrangement.
Finally, please note that the information contained in this page is not exhaustive. It is meant only to familiarize you with the basics of becoming a guardian.
Who Can Be A Guardian?
I have only mentioned grandparents as guardians so far, but aunts, uncles, siblings, other relatives, and even non-family members are granted guardianships as well. So if you are someone other than a grandparent seeking to obtain guardianship of a loved one, this page is for you too.
Are There Different Types of Guardianships?
There are essentially two types of guardianships: probate and dependency. Both can be generally defined as a matter in which a court orders someone other than the child’s parent to have custody of the child. A person can be granted guardianship of the person, guardianship of the estate, or both. In most cases though, it is guardianship of the person that people seek.
Do I Have Certain Duties to Fulfill As A Guardian; What Rights Do I Have?
First, guardians essentially have the same rights, responsibilities, and duties as parents, and these rights and responsibilities are generally the same with respect to probate and dependency proceedings (with some variations). That said, you will have to do some things most parents don’t, such as filling and filing a status report each year if the court orders it. The following looks like a lot, but when you read through it, it mostly consists of things you would or would not do, or are already doing and not doing.
- Guardians may be responsible for harm or damages the child cause, and like any parent, a guardian is responsible for negligent supervision of any kind.
- You cannot let the child live with his or her parents or anyone else. The child must live with you unless the judge says otherwise. You can let the child stay with other people for visits or short periods of time without a court order, as long as the child continues to primarily live with you. For example, the parents may be able to visit and see their child, but you decide when and how often, unless the court makes an order saying otherwise.
- It is vital for you to understand that the parents may regain custody of their child at some point in the future if the court decides the child no longer needs to have a guardian.
- You decide where the child lives. If you move, you must tell the court in writing right away. If you want to move out of California, you have to get the court's permission.
- You decide where the child goes to school. You must stay involved in the child's education, and help the child get any special services that he or she needs.
- You must take care of the child's medical and dental needs, making sure he or she gets proper care. In most cases, you can also make decisions about any medical treatment the child needs.
- You must get the child counseling or other mental health services if the child needs them, but you cannot place the child in a mental health institution without a court order unless the child agrees.
- You may be required to file a status report each year. Every guardian required by the court to complete, sign, and file a status report must file the completed and signed report no later than one month after the anniversary of the date of the order appointing them as guardian.
- You must also meet with any court investigators or social workers sent by the court and come to court when the court tells you to.
- The court can also order you to take on other duties or can place special conditions on you as guardian, if needed.
- Guardians may be responsible for harm or damages the child cause, and can be held liable for negligent supervision (just like parents).
- You cannot let the child live with his or her parents or anyone else, unless a court says otherwise. However, you can let the child stay with other people for visits or short periods of time without a court order.
- The parents may be able to visit and see their child, but you (or the court) decide when and how often.
- The parents may get custody of their child back in the future if the court decides that the child no longer needs to have a guardian.
- You may give the child permission (or not) to apply for a driver's license.
- If you let the child apply for a license, you must also get car insurance for the child.
- If the child has an accident while driving your car, you may be responsible for any damages caused by the accident.
- You may give the child permission to enlist in the military.
- If the child enters into active duty with the armed forces, the guardianship will end, and California law will consider the child to be an adult.
- Both you and the court must give permission for the child to get married.
- If the child gets married, the guardianship will end. As it is with military service, California law will consider the child to be an adult.
Again, it is a lot, but try to not let the above list intimidate you. It is better to go into a guardianship with your eyes open. If you look at it as simply assuming the role of a parent, then you already have a pretty good idea of what you'll need to do.
Probate guardianships are not initiated by the state, but by private parties, typically family members. It is often the case that the minor child is already living with the proposed guardian, and the child’s biological parents understand they lack the ability to properly care for the child. In such a case, if the parent or parents consent to the guardianship, then your matter may be straightforward. However, if one or both parents object, or even if they have simply abandoned the child and are nowhere to be found, then complications may arise.
If the parent objects, the court can still grant the guardianship if 1) the judge finds that an award of custody to a parent would be detrimental to the child and 2) the award to a nonparent is required to serve the best interests of the child. While the petition does not need to specifically allege serious abuse, neglect, or abandonment, the proof required to show detriment to the child must be “clear and convincing.”
In other words, it is still possible to obtain guardianship over the objection of a parent as long as you can provide convincing proof to the judge that being with the parent is detrimental to the child.
Further, if the child is in the state’s custody, a “ward of the court,” then a probate guardianship cannot be filed for. At that point the matter is a dependency guardianship.
Dependency guardianships are quite different from probate guardianships. Here, the juvenile court has exclusive jurisdiction over the matter, meaning that the child is a ward of the court. This means that child protective services have seen fit to take the child from the parents, usually as a result of serious neglect by the parents or some other conduct that is detrimental to the child. As I mentioned earlier, this is often the result of addition, alcoholism, and/or mental illness.
Often, particularly with very young children, the child is placed in temporary foster care with an anonymous foster family. This can cause a great deal of distress to the person who wants to become this child’s guardian. You don’t know where the child is, who they’re with, and how long they’re going to be there.
There is also the possibility that if the child remains with the foster family long enough that the foster family may be allowed to adopt the child. Thus, I cannot understate how vital it is for you to act quickly if CPS has taken a child you love from his or her parents because the first stage of a dependency guardianship moves very quickly, and the first hearing on the matter will happen just a few days after CPS has removed the child from the parent’s custody.
At the same time, if you have not already become acquainted with social workers from CPS, you will now. It is important for you to know that CPS social workers have a duty to do what they believe is in the best interest of the child. Their job is a tough one, and in my experience they rightfully take their duties very seriously. At times they can be short with you, and the [lengthy] reports they write often seem at odds with what you believe actually happened or even appear to purposely mischaracterize events. It is a frightening and intimidating process. However, it is important for you to understand that these social workers are ultimately there to protect kids. Again, this does not mean they are always easy to work with, but you need to be prepared to work with them as amicably as possible.
If CPS has taken a child you love into custody and you’re thinking about becoming a guardian, please call me and let’s talk about it. I will give you the pros and cons of hiring an attorney for cases like this, and I’ll walk you through the process.
As an alternative to a legal guardianship, caregivers can sign a Caregiver’s Authorization Affidavit. A Caregiver’s Authorization Affidavit is an official form based on California’s recognition that adults who have minors living with them are “caregivers” who often want and need to take some responsibility for the minor’s education and other care. A relative who has signed a Caregiver’s Authorization Affidavit may enroll a child in public school, make school-related medical decisions, and make other important decisions on the minor’s behalf. Non-relatives may also use this form to enroll a child in school and to receive school related medical treatment. You will need to download this form and have it notarized.
It is important to understand that a Caregiver’s Authorization Affidavit does not affect the rights of the child’s parents. The parents still have custody and control of the child, and have the right to take the child from you. In other words, you will not have legal custody of the child. Thus, if you want legal custody of another’s person’s child, you will want to consider a guardianship or if appropriate, adoption.
As I said at the outset, this page is not meant to be an exhaustive discussion of guardianships. It hits the major points and most common issues that most people face, but cannot possibly cover all there is to know about the guardianship process in California. If you have a guardianship matter of any kind, please feel free to contact me or make an appointment.
This page is for informational purposes only. It is not intended to be legal advice for your particular matter, and does not establish any kind of attorney-client relationship.