Temporary Guardianship in California

Guardianship is a legal relationship that is established when a court appoints an adult as a minor child’s guardian. A guardian assumes the rights and responsibilities of a child’s care for the duration of their guardianship. A guardianship can be permanent, until the child turns 18 years old, or temporary. Temporary guardianship is usually awarded in emergency situations or for specific purposes. Temporary guardianship leaves open the possibility of a child’s parents regaining care of the child when they are in a position to do so. 

Temporary Guardianship is generally only granted in emergency situations, where there is an immediate need for guardianship over a child. The courts classify an emergency as immediate medical treatment, enrollment in school, if the child’s parents are deceased, absent, incarcerated or incapacitated or if the child’s parent is also a minor. The courts must be convinced the guardian has shown good cause to ask for the temporary guardianship. Any adult over the age of 18 years old can become a child’s temporary guardian. Often grandparents, aunts or uncles, or siblings are the ones who petition the court for guardianship. Temporary guardianships are awarded for a short period of time, usually no longer than six months. 

Temporary guardianship grants a guardian all the legal rights and responsibilities relating to the care of the child. A guardian has full legal and physical custody of the child, and makes decisions about their care. Such decisions include medical and schooling needs. A guardian also decides where the child should live. This is, however, limited to California as without a court order a guardian is not permitted to move out of state with a child under their guardianship. The child’s biological parents rights are suspended while the guardianship is in place, but not terminated. 

This is different from an adoption, where the biological parents’ rights are terminated and the rights are transferred to the adopting parents. As biological parents’ rights are still in place in a guardianship, the rights can be transferred back to the biological parents at the end of the temporary guardianship, if it is appropriate to do so. 

Legal Process:

Petition

An application for temporary guardianship includes filing forms with the court. These include the Petition for Appointment of Temporary Guardian of the Person and Letters of Guardianship. These, along with other forms the court requires must be filled out and filed. The court requires information such as the proposed guardians relationship to the child and why it is necessary for the child to receive temporary support, care and maintenance from the guardian at the time of petition. At the same time as the application for temporary guardianship is submitted, a petition for general guardianship must also be filed. This is because a temporary guardianship is an emergency order only, and will end when a general guardian is appointed by the court or when the child’s parents resume responsibility for the child. 

Notice 

Notice of the hearing for the proposed guardianship must also be provided to the child if they are over 12 years old. The child’s parents and any other person who has visitation rights must also receive a notice of the hearing. If such people cannot be located, meaning notice cannot be given to them, the proposed guardian must explain this to the court. The proposed guardian must have taken reasonable steps to locate all concerned people, and may have to prove this to the court. 

Court Hearing 

A court hearing is then held where the court determines whether or not to approve the temporary guardianship. The court looks at all the information before them when granting the temporary guardianship. If the child’s parents consent to the guardianship, it is easier to have the guardianship approved. If the parents do not consent to the guardianship, the Judge must be satisfied the guardianship is in the child’s best interest. A temporary guardianship suspends the parents legal rights, so it is important that the court be satisfied that the guardianship is the best option in the circumstances. If the court believes awarding a temporary guardianship is in the child’s best interest, the guardian gains legal custody of the child and is appointed as the child’s temporary guardian. This is an official court order, and cannot be canceled by the child’s parents. 

Non-court Ordered Temporary Guardianship Arrangements Requiring Parental Consent 

As well as court ordered temporary guardianship, other more specific forms of temporary guardianship also exist. These include Power of Attorney for a Minor Child, a Caregiver’s Authorization Affidavit and Joint Guardianship. Parents may action any one of these forms of temporary guardianship if they recognize their current situation as being incompatible with their ability to care for their child. This could be due to a number of reasons, including serious illness, incarceration or military duty. 

Power of Attorney

Power of Attorney for a Minor Child grants a responsible adult the legal right to make decisions on the child’s behalf when their parents are unable to do so. This adult usually also has physical custody of the child. This means they are able to make decisions surrounding where the child goes to school and the child’s medical care. To establish a Power of Attorney, biological parents must consent as they must sign and notarize the required forms for the Power of Attorney to be legally valid. This, however, enables the biological parents to cancel the Power of Attorney at any time as it is not an official court order. 

Caregiver’s Authorization Affidavit

A Caregiver’s Authorization Affidavit establishes a temporary guardianship and is most suited to guardianships by relatives. A Caregiver’s Authorization Affidavit gives the caregiver the ability to enroll a child in school and make medical decisions on their behalf while they are living with the caregiver. If a Caregiver’s Authorization Affidavit is used and the caregiver is not a relative, they can only make medical decisions related to schooling, for example authorizing a child to receive the immunizations a school requires for enrollment. Similar to a Power of Attorney, this is not an official court order, meaning a child’s biological parents can cancel the Caregiver’s Authorization Affidavit at any time. It also does not give the caregiver legal custody of the child, or suspend the biological parents’ legal rights and responsibilities. 

Joint Guardianship