In California, legal guardianship is a court order that gives an adult the responsibility of taking care of a child who isn’t biologically theirs. Once appointed, a legal guardian has many of the same rights, responsibilities, and decision-making power as an actual parent, including the ability to make medical and education decisions on behalf of the child. Because these duties are so similar to what actual parents do, legal guardianship is often confused with adoption, however the two are not the same thing.
Here are a few things to know about legal guardianship in California, why you might want to consider appointing one, and how these scenarios differ from adoption.
Legal Guardianship in California
There are two major categories of legal guardianship in California: Juvenile Court Guardianship, and Probate Guardianship.
Juvenile Court Guardianship
Juvenile Court Guardianship requests come to a judge from either Family Court or a Juvenile Court action. These are the children removed from their home by child protective services due to neglect, abuse, or other dangers. Unification with biological parents is always the main goal in these cases, however if that’s not possible, a legal guardianship appointment will be made.
If a parent does not agree with the decision to elect a guardian, they are free to file an objection with the court, and to make statements at the hearing. However, in the end, all decisions will be made by the judge according to the best interest of the child. If the parent’s objections are overruled, it’s possible the court will still grant visitation rights while the child is under the care of his or her legal guardian.
Probate Guardianship
The second category of legal guardianship in California, is when a child enters the system through probate court. Probate court is the part of our judicial system that handles death matters, such as wills, estates, trusts, and other practical issues that need to be resolved when a person dies. When a legal guardianship application is initiated on behalf of an orphaned child, this is referred to as a “Probate Guardianship.”
Usually Probate Guardianships only apply to children who are under eighteen. For some cases, though, it’s possible to request an extension for youth who are over eighteen, but not yet twenty-one.
Scope of Legal Guardianship Powers in California
The decision to grant an outside adult legal authority over a non-biological child is not something California courts consider lightly. Circumstances that require a guardian will vary from case to case, and sometimes the full spectrum of rights is neither appropriate or needed. Therefore, when granting a legal guardianship, California courts authorize this power in one of three ways:
Guardianship of the person;
Guardianship of the estate; or
Both personal and estate guardianship.
Legal Guardianship of the Person
An adult who is granted physical guardianship over a child has the duty of meeting all the child’s basic, daily needs. This includes food, shelter, safety, and emotional support, but also extends to things like medical care, health needs, and education. When you’re appointed to be a legal guardian over a child’s physical needs, you have all the same responsibilities of caring for that child as a biological parent, plus the legal authority to make necessary decisions to that effect.
Legal Guardianship of the Estate
On the other hand, estate guardianship extends only so far as that child’s property is concerned. Usually this kind of guardian is arranged when a child inherits money or real property, and needs an adult to oversee fiscal matters until he or she turns eighteen. In most cases, the surviving parent is appointed to this position, unless both parents are deceased.
If the child is orphaned, the court might grant both physical custody and estate management to a single guardian. Or, these powers might be split between two people, in order to make it harder for a guardian to take advantage of a child’s wealth and age to benefit themselves.
Who Can Be a Legal Guardian
Anyone can apply to be a child’s legal guardian, and they do not actually have to be related. Guardians may include:
Grandparents;
Adult siblings;
Aunts, uncles, and other relatives;
Foster parents;
Close friends; or,
A teacher, counselor, or any other adult who has a relationship with the child.
Regardless of who applies, all guardianship appointments will be made in accordance with a child’s best interests.
Applying for Legal Guardianship in California
Whether the child’s parents are deceased, or are simply unable to properly care for their children, the application for legal guardianship follows the same basic process: paperwork, court investigation, and hearing.
Paperwork
To initiate a guardianship application, there are several forms that you need to complete, including a petition for guardianship. Many of these forms require supporting documents, so it’s a good idea to have your family law attorney on hand to help you avoid making common mistakes that will delay your process.
Court Investigation
Once all the forms have been filed, the court will assign an investigator to visit your home. This person will conduct interviews, look for signs of neglect or abuse, and conduct criminal background checks on everyone involved. This might sound a little invasive, but it is a necessary step to ensure that guardianship decisions are made according to the best interest of the child.
After these independent inquiries are through, the investigator will file their findings with the court, and copies of this report will be given to your attorney, as well as to any other relatives involved. If there is anything in the account you believe was made in error, your attorney can help you file an objection.
Hearing
The last step to becoming a legal guardian, is to attend the hearing. At this meeting, the judge will listen to all interested parties involved—including the child’s parents, if they are alive and object to the appointment. If there are too many competing interests involved, a judge may even assign an attorney to specifically represent the child’s interest. If the judge approves your application at the hearing, he or she will issue an order to make your position official.
As a legal guardian, you will be expected to file an annual status report. So long as there aren’t any problems, your appointment will continue as outlined in the guardianship order. Usually until the child turns eighteen.
Legal Guardianship vs. Adoption in California
While legal guardianship and adoption function to provide the same, basic care for children in need, they are not the same thing. The primary difference being, that in a legal guardianship, parents retain their parental rights, whereas in adoption, these rights are transferred, and cannot be reacquired. For this reason, the process is generally more rigorous than that of a legal guardianship.
Once finalized, adoption displaces the line of inheritance, halts any child support duties the biological parents might have had, and relieves adoptive parents from the obligation of fostering a relationship between the child and its biological parents—including visitation. Legal guardians, on the other hand, are subject to visitation schedules (as laid down by the court), and unlike adoptive parents, legal guardians must provide special provisions in their will, if they wish their wards to inherit.
In short, once a child is adopted, their new parents have all the same rights, responsibilities, obligations, and authoritative power as biological parents. In the eyes of the law, there is no distinction.
Legal Guardianship Attorneys in California
Whether it’s the permeance of adoption, or merely a legal guardianship, taking on the responsibility of someone else’s child is a huge endeavor, and one that should be thoughtfully considered with your family law attorney. If you have further questions about the legal guardianship process in California, or other adoption-related questions, we are here for you. Call us at (209) 989-4425, or get in touch online to schedule your consultation, and let us help you pursue the arrangement that will work best for you and the child you care about.
Guardianship in California is different than it is in other states, but the end result is the same: someone other than a child’s parent is given legal custody of the child.
Why Do Courts Award Guardianship in California?
Generally, courts in California only award guardianship to an adult other than a child’s parent if the parent is unable to care for the child. This can occur for several reasons, including the death of the parent (or a serious illness), or:
Alcoholism or drug addiction
Deportation
Domestic violence
Incarceration
Military duty abroad
Profound financial issues
Other circumstances that render the parent unable (or unfit) to care for the child
Guardianship in California: The Basics
Guardianship is something the court considers very seriously – and the person requesting guardianship will have to prove that it’s in the child’s best interest if the parent objects.
When Parents Object to a Change in Guardianship
The courts almost always consider a parent to be the best caregiver for a child. California Family Code 3041 says, “Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.” It goes on to say that the person requesting guardianship must provide clear and convincing evidence, which means simply disagreeing with a parent’s parenting style isn’t enough – the person requesting it must prove that it’s better for the child and that staying in the current environment would be harmful to the child.
Probate Guardianship: California’s Two Methods
Only the court can appoint a legal guardian for a child. It can happen through the juvenile dependency court or as a result of a petition filed by the person who wants to become the child’s guardian. The two types of guardianship in California are guardianship of the person and guardianship of the estate.
Guardianship of the Person
Guardianship of the person refers to a situation in which a person other than the child’s parent has physical and legal custody of the child. This can be a grandparent, an aunt or uncle, or another family member (such as a sibling), or it can be someone who is not physically related to the child but who has strong ties with the child and is capable of taking care of him or her.
Guardianship of the Estate
Guardianship of the estate refers to someone being given control of a child’s income, money or other property until the child turns 18. Sometimes a child needs a guardian of the estate after inheriting money or other assets, but typically, the court appoints a surviving parent.
What if the Child is Native American?
If the child is Native American, federal laws apply – you’ll need to let your Stockton family law attorney know so she can take the appropriate steps.
Do You Need to Talk to an Attorney About Guardianship in California?
Guardianship in California can be a complicated issue, and you may benefit from talking to a Stockton family law attorney about your situation.
