Getting Guardianship of a Child

Guardianship is intended to be a temporary solution for families who find themselves unable to care for a minor child, either due to medical, financial, or some other hardship. A guardianship puts the parents’ rights on hold and gives rights to the guardian (like the right to make health care decisions, education decisions, choose where the child will live, put them on medical insurance, etc.). There are other ways to accomplish this in some cases (like through a Power of Attorney executed by the parents), but a guardianship is a more long-term solution and creates more stability regarding the custody of the child. Ideally, a parent who realizes that they are no longer in a position to care for their child will nominate a friend or family member to serve as their child’s guardian. The process is much simpler when one or both parents willingly participate in the it. In that case, there are still an incredible amount of forms for the guardian to file with the court, but, if the parent or parents are in agreement, the court is likely to grant the guardianship at the first court hearing. Prior to the hearing, some counties will conduct an investigation of the proposed guardian. Others will wait until after the first hearing and only order an investigation if someone is contesting the guardianship. In all cases, certain people have to get notice of the proposed guardianship. Those people are generally the parents, the grandparents, and siblings of the child (or the people the siblings are living with if the siblings aren’t adults yet).

If one or both parents contest the guardianship, an investigation will definitely be required, and in many counties the court will appoint an attorney to represent the best interests of the child as well. These can be very difficult cases where the guidance of an attorney becomes very useful. Generally, the court will not order a guardianship under California law over the objections of a parent unless it finds that custody to the parents would be “detrimental” to the child. This can be a tricky argument to make, as a court has the discretion to refer such cases to the dependency/foster care system rather than make this decision itself. Usually, courts will refer the parties in contested cases to mandatory court mediation to try to come up with a plan that everyone is comfortable with. Mediation can often result in a child-centered plan that meets everyone’s needs.

Click here to see our Guardianship Overview page