I’ve received a lot of questions lately regarding legal guardianship. Many of these questions come from grandparents seeking custody of their grandchildren. Others come from parents recognizing that there may be a need for another adult to take temporary care of their child.
Let’s face it, whether it’s choice or circumstance, everyone who has a child is not always ready to be a parent. These situations will often arise because the parent is very young themselves. In other situations, the parent is serving in the military or has a job that has taken them far away from a support system. An altogether different scenario is because the parent is struggling with substance use issues or criminality.
Whatever the case may be, well-meaning grandparents and extended family members want to ensure the safety and well-being of their minor loved ones.
What is a Legal Guardianship?
In California, guardianships are governed by the California Probate Code. Guardianships occur when a court orders someone other than the child’s legal parent to 1) have custody of the child; 2) manage the child’s property (called an “estate”); or, 3) both.
Who Can Be a Guardian?
While many times the request to be made a guardian of a child is brought by a relative, it doesn’t have to be a relative. Anyone who knows the child, subject to certain criteria, can become a child’s guardian. A guardian can be:
- Sisters and brothers,
- Aunts and uncles,
- Other relatives,
- Foster parents,
- Friends of the family, or
- Someone else who knows the child.
What Are a Guardian’s Rights and Responsibilities?
Under each type of probate guardianship, the guardian will have a different set of rights and responsibilities. Consequently, if granted both types, all will apply to the guardian.
Guardianship of the Person
Guardianship of the Estate
In cases where the child is already the subject of a juvenile court case, the availability of guardianship and whom the court will consider as a guardian will largely be dependent on what stage of the proceedings that case is in.
- Prior to the filing of a Welfare and Institutions Code (WIC) § 300 petition, if someone comes forward to become the guardian, there may not be a case at all;
- After the filing of the WIC § 300 petition, if someone comes forward to become the guardian, and the parents agree, the court may grant the guardianship and dismiss the petition entirely;
- When a child has already been removed from his/her parents, the juvenile court will conduct status review hearings every 6 months and the court may appoint a guardian at any one of these hearings; based on the recommendation of the social worker.
Whether Probate Court or Juvenile Court … the court will ALWAYS make a best interests of the child determination prior to granting the guardianship.
Is There An Alternative to Guardianship?
In some cases, the formal process of having a guardianship is not necessary. Parents may come to the conclusion that another adult should provide care and make decisions for their child. In that situation, parents can sign a Power of Attorney for a Minor Child. This affidavit gives another adult the right to take care of their child without court intervention.
- If the person is a qualifying relative, this form allows the caretaker of the child to enroll the child in school, seek services for the child, and to obtain medical care for the child.
- When the person is not a relative, however, this form will allow the caretaker of the child to enroll the child in school but limits the caretaker’s medical authority to medical treatments related to school (i.e., annual physicals and immunizations that are required by the school).
This affidavit is terminable by the parents at any time. It is also only valid while the child is living with the caregiver.
If you are thinking about guardianship of a child but don’t know where to start, call the Law Office of Erika A. Williams at (866) 495-3796 to schedule a consultation or case evaluation.
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