Guardianship

Overview

Adoption Law Group is here to help you take the legal steps necessary to provide the best, most stable home possible for the child in your care.

Difficult circumstances may render a biological parent unable to care for their child adequately. Serious illness, incarceration, substance abuse,  military duty, or other unexpected circumstances can create the need for someone other than the child's legal parent to care for a child, either on a temporary or permanent basis. 

The path to successfully obtaining legal guardianship can be complex and requires that specific rules regarding court filings, notice of the proceedings, and court investigation are followed. Once all the necessary documents are filed with the Court and the necessary people (generally, the parents, grandparents, siblings 12 years of age and older, and current caretakers, as well as State and County departments) are given proper notification, the Court will schedule a hearing to determine whether or not the petition for guardianship should be granted.

Here are the most important things you should know about obtaining legal guardianship in California:

Legal Definition of California Guardianship

When you become a minor child's guardian, you have the authority to make decisions for that child. Control over the minor is transferred from the legal parent to the guardian. Guardianships become necessary when the child's legal parents die or are not capable of caring for the child. A guardianship of a person remains in effect until the Court orders termination of guardianship or until the child turn 18 years old.

If the child has inherited significant property, it is also possible to obtain guardianship over the child's estate or property. This is called Guardianship of Estate. Unlike most other family law matters in California, guardianships occur in probate court.

Benefits and Responsibilities of a Guardian in California

In guardianship, the guardian is awarded legal and physical custody of the child and is allowed to make medical, financial, and educational decisions and place the child on their medical insurance policy. (Note: Most insurance companies will not allow you to add an unrelated minor to your insurance unless you have a court order making you the guardian). The guardian is responsible for providing the minor child food, shelter, clothing, education, and health care. The biological parents' parental rights are suspended but not terminated while guardianship is in place.  Technically, the biological parents are still obligated to pay for the financial support of the child.

Time Required for Guardianship in California

Once a petition for guardianship is filed, it typically takes about three months for the guardianship to be granted; however, if there is an immediate need for the minor child to have a guardian appointed, you may also file a petition for temporary guardianship.

Guardianship Without Biological Parent's Consent

If one or both of the child's parents object to the guardianship, the judge may order the guardianship over their objection if he or she finds that staying with the parent(s) would be detrimental to the child AND that the guardianship is in the child's best interest.

 
Length of Guardianship

Once the Court grants guardianship, it will remain in effect either until the minor reaches the age of 18 or until the Court makes an order terminating the guardianship.

Guardianship v. Caregiver's Affidavit v. Power of Attorney

A formal guardianship is not always necessary. California Family Code §6550 allows a person related to a child to execute a Caregiver's Authorization Affidavit, which enables the caregiver to enroll the child in school and obtain medical treatment for the child while the child is living with them.  Non-relatives with a Caregiver's Affidavit may enroll the child in school and authorize school-based medical treatment.  The affidavit does not give the caregiver official legal custody of the child or suspend or terminate the parent(s) legal rights and responsibilities. While the Caregiver's Authorization Affidavit does not have to be signed by the child's legal parents, they may cancel the affidavit at any time.

A Power of Attorney may be appropriate when the child's parent or parents are willing to execute one.  It can detail exactly what kind of decisions the person holding the Power of Attorney may make concerning the child, including school-related decisions and health care.  It does not, however, establish custody or shift the duties of support.

Home Study Requirements for Guardianship in California

As part of the Court's investigation of your guardianship petition, either a probate investigator (in the case of guardianships by relatives) or a Department of Children and Family Services social worker (in non-relative petitions) will be assigned to do an interview and and investigation report for the Court.  A guardianship does not require a "home study," and the interview is typically conducted at the county office.

If you're considering guardianship of a child, it's important that you consult with an experienced attorney about the legal implications and requirements. The attorneys at Adoption Law Group serve clients in Los Angeles County, Orange County, and  San Bernardino County with guardianship matters.