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1. What is a guardianship?
A legal guardianship is a formal legal arrangement which transfers the custody of a minor child from the natural parent to a relative or other caregiver. When a child is being cared for by an adult other than his or her parent, the child (if he or she is over 12 years) or the adult caregiver can request a court to appoint the caregiver as the child's legal guardian. Probate Code § 1510(a) Upon hearing the petition, the court may grant a guardianship whenever it determines that it is necessary and convenient to do so. Probate Code § 1514(a) Unlike an adoption, where a parent's right to custody is completely and permanently terminated, legal guardianship temporarily suspends the parent's custodial rights. You may also seek a co-guardianship, if you feel that you may need to share the responsibilities of the care of the child now or in the future.
Legal guardianship can help the caregiver attend to the child's medical and educational needs. Oftentimes, schools refuse to enroll students if they are not living with a parent or legal guardian. In the event that the child needs medical treatment, the guardian, like a parent with legal custody, can consent to medical treatment for the child.
You may be about to assume the full-time care of a child or you may already be providing for a child on a full-time basis. You may not want to go to court to make the arrangement formal. However, a school administrator may require a legal guardianship arrangement to permit a caregiver to enroll a child in school or allow a child to participate in school activities. In addition, a hospital may require a court-appointed guardianship in order to allow a caregiver to assume responsibility for the child's health care in the parent's absence. Also as a legal guardian you have the right to obtain a temporary restraining order if you need it to protect the child from abuse.
There is another reason to consider obtaining a legal guardianship. For almost all unmarried minors under the age of 18 years, California law requires that there must be an adult who is responsible for the care of such minors. If your own daughter's or son's ability to care for his or her child is severely hindered as a result of incarceration, drug/alcohol dependency or other illness, it is possible that Child Protective Services (CPS) could become involved. The juvenile court, acting on a social worker's recommendation, could decide to place the child with a foster parent who is a stranger to the family. However, CPS intervention may be prevented if a relative temporarily assumes responsibility for the child.
Yes, if a parent with custody of a child has been diagnosed as having a terminal illness, the court may appoint the person nominated by the parent and the custodial parent as Joint Guardians as long as the non-custodial parent does not object or the court finds that giving custody to the non-custodial parent would be harmful to the child. Probate Code § 2105(f)
California Probate Code § 2351 states that the guardian has the duty and responsibility for the care, custody, control, and education of the child. The guardian may also determine the residence of the child. Probate. Code § 2352. In certain cases, a guardian may be held legally responsible for the child's willful misconduct. Civil Code § 1714.1a or for the use of firearms Civil Code § 1714.3.
As long as there is no serious opposition to the guardianship from the parents or other relatives, it is a relatively simple matter to set up the guardianship for the child.
You or your attorney must fill out several legal forms. At least 15 days before the hearing, you must notify the parents, any current legal or actual guardians, the child if 12 years of age or older, and all relatives named in the petition. You must then file the papers with the Probate Department of the local Superior Court and set up a hearing date. Probate Code § 1511 Unless waived by the court, the local and state Department of Social Services must also be notified. The department will do a confidential background check on you which will turn up any arrests or previous involvement with Child Protective Services. The report may be made available to persons served in the proceeding or their attorneys. Probate Code § 1513 As long as you are able to show that you have properly notified the child's relatives and that you and the parent are in agreement, the probate judge will usually grant the order appointing you guardian of the minor.
Remember: a legal guardianship is always modifiable. That is, you may modify, change, or terminate the terms of the guardianship, as may the parent.
Here is a self-help resource on becoming a guardian that you may want to consult: Nolo Press publishes a self-help book, The Guardianship Book: How to Become a Child's Guardian in California, including step-by-step instructions and the required legal forms. If you and the parents agree that you want to set up a guardianship, the publication may give you sufficient instructions on the guardianship procedure.
Nevertheless, you may feel that the process of preparing and filing the guardianship petition and asking the court to grant the petition may be too complicated to do without professional help. The court has the discretion to appoint a lawyer if the court believes that this would be helpful to the proceeding or is necessary to protect the child. If the court determines that the proposed guardian is unable to pay for these services, it may order the county to pay the fee. Probate Code §1470 If you are unable to convince the court to appoint a lawyer for you, you should try to get legal assistance from a legal services office in your area. A number of counties have lawyer referral panels, voluntary legal services, or pro bono panels which provide free or low-cost legal representation to income-eligible people in certain cases. See the legal section of the Resource Guide in this manual to find out what services are available in your county.
Yes, non-relative caregivers whom the court believes will be able to provide a wholesome and stable environment for the child may become guardians. The proceeding is very similar to guardianships for relatives. In addition to the information required in a relative guardianship petition, you will need to disclose whether you have adoption plans for the child and comply with a confidential investigation conducted by the Department of Social Services. Probate Code §1540 et seq.
If you are applying for guardianship and cannot afford to pay for the filing fees, you can apply for a waiver of court fees and costs (also called an In Forma Pauperis application or application for fee waiver). The current fee is about $190 in most counties, but check with your local county clerk's office for the amount of filing fee in your county.
You qualify for the waiver if you are currently receiving financial assistance under any of the following programs:
You may also be eligible for a waiver if your monthly income is below a certain limit or if your income is not enough to pay for the common necessities of life for yourself and your grandchildren or the children that you support.
Applications are available at the County Clerk's Office. Request an Application for a Waiver of Court Fees and Costs and an Order on Application for Waiver of Court Fees and Costs.
The visitation rights of the minor's parents are not taken away just because there is a guardianship. The court will almost always allow visitation rights to the parent. This question is not specifically addressed in the guardianship proceedings unless brought up by the parties. If no previous court order or court proceeding exists with respect to visitation, the absent parent can file a motion with the court to request a visitation order. Judges will usually not order you to bring the child for visitation, but rather will require the parent to arrange the child's transportation.
It is critical, for everyone's sake, that you: (1) give careful consideration to accepting the care of the child and (2) make all efforts to maintain a good relationship with the child's parent, as well as between the child and parent. Before the guardianship hearing, you should try to develop a realistic visiting plan. If the parent is incarcerated, make sure the court is aware of any special visiting programs (such as Children's Centers, Family Living Unit Visits, Contact Visits, etc.) or community organizations (such as Friends Outside) which may be able to assist in arranging the visits.
There may be occasions where the parent is not in a stable living situation. Perhaps the parent is living on the streets and is interacting with you and/or the child in a negative or uncooperative fashion. For example, the parent may act unpredictably irrational during a drop-in visit because of a substance dependency problem. Ask the parent to schedule the visits for a particular time, so you have time to prepare the child. Ask other cooperative relatives to be present for the visit.
You may ask the court to limit the parent's contact with the child at the time that the guardianship order is issued (if there are problems with visits or phone calls). If there is a previous visitation order, you can file a motion to modify that order if problems with an uncooperative parent persist. Likewise, the parent can also file a motion to change the original order.
If you are the legal guardian, you have custody over the child and retain the legal authority to keep an abusive parent away through a temporary restraining order (TRO). A person who is the victim of elder abuse can also apply for a restraining order against the abuser.
In order to obtain a TRO, you have to go to court and explain why the person poses a threat to you or the child. Every case is decided by the judge on the particular facts of the case, so it is important that you carefully note episodes of violence with dates and specific circumstances, the frequency and type of the abuse. Understandably, you may find it difficult to disclose to the judge something unpleasant about your family that you would prefer to keep private. You may also fear that obtaining the TRO will cause retaliation. Finally, it may also be difficult to call the police on your own son or daughter once you have the TRO and the parent ignores the order. However, if there comes a time when you are forced to request police assistance because of an abusive situation, the existence of the TRO will increase your credibility with the police. A TRO is effective for approximately three weeks, until the formal hearing at which time it can be extended for a period of up to three years.
If you are not the child's legal guardian, you cannot get a TRO against a parent who has legal custody of the child. However, if you have already filed a petition for a guardianship you may file a petition for a temporary guardianship and at the same time, ask the court to issue a TRO. With the assistance of a lawyer, papers for a temporary guardianship can be prepared and a judge can sign an order granting temporary guardianship within a short time, sometimes as quickly as 24 hours. Probate Code §2250 The temporary guardianship terminates automatically after either 30 days or the appointment of a permanent guardian. Or, the court may extend the time of a temporary guardianship, based upon a showing of good cause. Probate Code §2257
Whether the child is in a guardianship or in foster care you will be faced with many difficult decisions as the caregiver of this child. Although you may feel that it is important that the parent and child be with each other, the parent's drug or alcohol problem may prevent this from being a good option for the child. If this is the case, you may feel that you have to oppose the parent's request for reunification with the child until the parent is ready to act responsibly toward the child.
You may decide to oppose termination of the guardianship when the parent petitions to end it. Likewise, when the child is a dependent of the juvenile court (see section on dependency proceedings), you may elect to oppose reunification. In either situation, you should consult an attorney, if you are contesting a proceeding. See the Legal Resources section of this manual for a list of legal services and pro bono projects. If you have a court-appointed guardianship, the parent does not have the legal right to remove the child from your care without the court's permission. The parent must go to the court that approved the guardianship and ask that the guardianship order be terminated. If the parent takes the child before the court modifies or terminates the guardianship, the parent may face criminal prosecution for "child stealing." If the parent is on parole or probation, his or her parole or probation may be revoked.
If the parent has not had his or her parental rights terminated by the court or suspended as in the case of guardianship, the parent is still the legal caregiver of the child. You should avoid a direct confrontation with the parent because it could be emotionally harmful to the child and jeopardize your caregiver status. Use the support and cooperation of other relatives and friends, clergy, or a sympathetic community organization to work out an agreement between you and the parents.
A guardianship remains in effect until the child is adopted, turns 18, marries, or the order is terminated by court order following a hearing. Probate Code § 1600 The legal guardian, parent, or the child can ask the court to terminate the guardianship. Probate Code § 1601 Any interested party may petition the court to have the guardian removed upon showing of good cause. Probate Code § 2651
The guardianship will be terminated if the court determines that it is no longer necessary that the child have a guardian or that it is in the child's best interest to terminate the guardianship. The Probate Judge (who usually hears guardianship matters) will want evidence that (1) the parent has a stable place to live; (2) the parent has a source of income; (3) the parent is "fit" or has been sufficiently "rehabilitated"; and (4) the parent can provide a good home for the child. The natural parent, generally, will be given preference in custody proceedings. This is not generally true in cases where the parent has abused the child. Also, if the child is over age twelve and does not wish to return to the custody of the parent, the court may choose not to return the child to the parent.
You may petition the court to resign as guardian, a request which will be granted if the court finds the resignation to be proper. Probate Code § 2660
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