Guardianship in California

Guardianship is a legal process whereby a child is placed in the care of a guardian rather than remaining in the care of their parents. A guardian assumes legal responsibility for the child and the parents are unable to retain their parental rights. A child’s parents’ parental rights are not terminated under a legal guardianship but suspended while the guardianship is in place. 

This is because the guardian now holds those rights. A guardian raises the child, is awarded legal and physical custody of the child and is responsible for the day to day care of the child. A guardian is also able to make decisions surrounding the child’s medical care, education and living situation, as well as provide consent for a child to obtain a driver’s license, join the armed forces or get married. Guardianship can be either permanent until a minor child turns 18, or temporary. A guardianship usually remains in effect until the child turns 18 or the court orders that it be terminated. 

Guardianship usually comes about for two primary reasons:

1. If the parents are unable to adequately care for their child due to serious illness, incarceration, substance abuse or any other situation, they may appoint a guardian. Guardians can be appointed on a temporary or permanent basis. 
2. If both parents are deceased, and a guardian is appointed in their wills, the child’s care is transferred to the guardian. It is also possible to obtain guardianship of the estate if the child has inherited significant property. 

The overarching principle of guardianship is whether the guardianship is in the best interests of the child. When considering the child’s interest, the court looks to the stability a guardian can provide as well as the guardian’s ability to provide day to day care for the child in a way that the child’s parents cannot. The guardian takes over the responsibility to care for the child and raises the child to the best of their ability within the circumstances. 

Legal Process:

The legal process of obtaining guardianship of a child in California is very detailed. Many specific rules are in place for court filings, giving notice of proceedings and court required investigation. Unlike most other family law cases, the probate court deals with guardianship.

The process is much smoother when one or both parents willingly participate in the application for guardianship. If the parents are in favor of guardianship, it is usually awarded at the first hearing. If the parents do not consent, the court must deem it detrimental to the child to remain in parental custody before awarding legal guardianship to the proposed guardian. It typically takes two to three months for guardianship to be granted, but this depends on a variety of factors. 

Filing documents 

The first stage of an application for guardianship is the filing of the Petition for Appointment of Guardian of the Person form. If an application for guardianship is made that also includes guardianship of the child’s estate, an additional form must be filed. These forms along with many others must be reviewed and filed with the court. Filing will trigger the next stage in the proceedings. 

Notice 

Notice of the proceedings must be given to certain people. These people are generally the family members of the child, which includes the child’s parents, grandparents, and siblings. If the siblings are also minors, the people with whom the siblings are living must receive the notice. If the child over whom the guardianship is sought is over 12 years old, the notice must also be given to them. 

Investigation

To obtain guardianship, the court requires an investigation of the proposed guardian to be completed. If the proposed guardian is a relative of the child, the investigation is conducted by a court investigator, known as a probate investigator. If the proposed guardian is not a relative, the investigation is conducted by the county’s Human Services or Social Services department. 

The investigation involves interviewing the proposed guardian, the child, and, if available, the child’s parents. The investigator looks at matters such as where the child will live, where the child will go to school, the proposed guardian's family situation, any health care issues and visitation by the parents. The investigation also involves a home study, in which the investigator visits the home where the child will live. This investigation also involves a background check of all other residents at the proposed home. Once the investigation is complete, it will be submitted to the court and reviewed by the Judge as part of the overall application for guardianship. 

Parental Consent

If both parents consent to guardianship, the Judge orders guardianship if it is necessary and appropriate. If, however, one or both parents object to guardianship, the process becomes more difficult. If there are parental objections to guardianship, the court usually refers all the parties to mediation. In mediation the aim is to come to an agreement that is in the best interests of the child. If mediation is unsuccessful, a Judge needs to determine whether appointing a guardian is in the child’s best interests. 

In California, generally, if there is a parental objection to guardianship the court does not grant it unless it finds that the child being in the parent’s custody is detrimental to the child. This is a high burden to prove and the court has wide discretion on how they interpret the meaning of “detrimental” in the unique circumstances of the case. The court must also determine whether guardianship would be in the best interests of the child. If the court rules that it would be detrimental for the child to remain in the custody of their parents, and it would be in their best interest to have the proposed guardian awarded guardianship, they will award guardianship. 

Court order 

If guardianship is awarded, the Judge signs the Order Appointing Guardian or Extending Guardianship of the Person. The clerk also issues the Letters of Guardianship. These official documents award guardianship over the child and create a legal relationship between the guardian and the child. The guardian is now responsible for the day to day care of the child, as well as making important decisions on the child’s behalf. 

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