Guardianship Laws Explained
A guardianship is a court-created legal relationship between an adult, called a “guardian,” and a minor child. The purpose of creating a guardianship is to give the guardian legal rights to, as well as legal responsibilities of, a minor child who does not already have sufficient adult supervision and/or adult protection.
Once a guardianship is created, the guardian usually has legal rights to child custody, child support, and/or child visitation of the child named in the guardianship documents (Letters of Guardianship). The guardian will also usually have the responsibility, in whole or in part, of caring for, raising, and protecting, the child named in the Letters of Guardianship.
For example, a non-adoptive stepparent, whose spouse dies before the deceased spouse’s child has reached the age of eighteen (18), might consider petitioning the court for Letters of Guardianship in order to continue the legal right (and responsibility) to care and raise his or her stepchild.
The most common reasons that a petitioner seeks Letters of Guardianship related to a minor child include:
Non-adoptive stepparent’s spouse dies and the non-adoptive stepparent wishes to continue raising his or her stepchild;
Grandparent(s) request Letters of Guardianship to have the legal right, and the legal responsibility, to care for his or her grandchild (especially where the mother and/or father of the minor child is incapable or unwilling to care for his or her child;
A close relative of the minor child requests Letters of Guardianship after the minor child’s parent(s) die or otherwise become unavailable to raise and care for their child (i.e. parents are in prison, addicted to alcohol or narcotics, cannot be found, etc.).
Note: A grandparent seeking guardianship over his or her grandchild could consider other legal options, such as a grandparents’ rights petition, in order to accomplish some limited legal rights and responsibilities related to his or her grandchild. There are important legal distinctions between guardianship rights, stepparent adoption rights, and grandparents’ rights. For more information, contact our divorce and family law lawyers for a free case evaluation.
Guardianship Rights: The rights and responsibilities that are conferred upon a guardian depend on the type of guardianship created: “guardianship of the person” and/or “guardianship of the estate.” (See below for distinction).
Guardianship Types: There are two main types of guardianship: Guardianship of the person and guardianship of the estate.
Guardianship of the person
A guardianship of the person is a guardian that has the same legal rights and responsibilities to a child as a parent. A guardian of the person may make legal and non-legal decisions on a child’s behalf, including decisions related to the child’s health, safety, medical care, dental care, extra-curricular activities, education, religion, travel, discipline, emotional well-being, and associations. A guardian of the person is responsible for raising and caring the child and is legally and financially responsible for the intentional acts of the child.
Guardian of the estate
A guardian of the estate is a guardianship created is assist a minor child with respect to his or her management of property and assets. Property and assets includes bank accounts, inheritance, securities, real and/or personal property, and valuable heirlooms.
Note: A guardian of the estate may be appointed to anyone qualified to manage the minor child’s estate, including the surviving parent when one parent of the minor child dies. A guardian of the estate has duties similar to a trustee: to manage the child’s estate effectively, carefully, and with fiduciary responsibilities. Also, in California, a person who is appointed to be the guardian of a minor’s estate, must be bonded and insured.
Note: A guardian is not needed to manage a child’s estate when the value of the estate is under five thousand dollars ($5,000). Attorney fees for establishing the appointment of a guardian for the child's estate may be paid for by the estate itself, subject to court approval.
Multiple Guardians: More than one guardian may be appointed to serve as the guardians of the person and/or as the guardians of the estate. Also, a person may be appointed to serve as the guardian of the person, while another person is appointed to serve as the guardian of the estate. Generally, guardians are appointed to serve as both the guardian of the person and as the guardian of the estate.
Who May be Appointed as a Guardian
Guardianship rights may be appointed to anyone suitable to care for the minor child. This includes grandparents, aunts, uncles, siblings, friends, stepparents, and even babysitters. What is considered “suitable” by the judge is considered on a case by case basis; however, the court will only grant Letters of Guardianship if the guardianship is in the child’s best interest in light of all the circumstances known to the judge at the time of the granting of the Letters of Guardianship.
How to Become a Guardian
Legal documents must be filed in probate court in order to establish a legal guardianship. These legal documents may be found at the family law court house, the judicial council of California (online), and at most family law lawyers’ offices. The legal documents do not cost money if they are printed from the Judicial Council of California. Some family law courts and some family law lawyers may charge a nominal fee for the legal documents related to guardianship petitions.
Caveat: Guardianship legal forms do not provide information on any of the following: how to prepare a proposed guardian’s or witness’ declaration(s), how to complete and serve the required legal forms, how to conduct ethical investigations, how to comply with strict court procedures and rules, how to conduct discovery, how to research and draft motions, or how to properly produce and object to the presentation of evidence. Remember, just because a non-lawyer is not familiar with the legal procedures related to forming a guardianship, does not mean that the judge is lenient on that non-lawyer. For assistance with legal forms, contact our divorce and family law lawyers for a free case review.
Temporary v. Permanent Guardianship
Temporary Guardianship: A temporary guardianship is sought in emergency situations, often times through an emergency “ex parte” request for temporary guardianship. This usually happens when the minor child's parent is unexpectedly unavailable and the minor child needs a guardian without delay.
Common emergencies that lead to requests for temporary guardianship include: A parent's arrest, death, deportation, military deployment, or child abandonment. Temporary guardianship last up to sixty (60) days or until the emergency ceases. It might be possible to extend the time otherwise allowed for temporary guardianship if the court finds good cause to continue the temporary guardianship.
Permanent Guardianship: A permanent guardianship ends when the minor child turns eighteen (18) years of age, or upon successful petition to “terminate the guardianship.”
Juvenile dependency cases: When a temporary guardian is appointed in a juvenile dependency case, the state of California is the temporary guardian of the minor child and the child is referred to as the ward of the state; however, a person closely related to the minor child subject to a juvenile dependency petition may seek the court’s approval to be appointed as the child's temporary or permanent guardian (as opposed to the child becoming a ward of the state).
The juvenile court will assign a case worker who conducts a suitability assessment of the person(s) seeking to become guardian(s) in a juvenile dependency court case. For more on guardianship law in juvenile dependency court see Juvenile Dependency Petitions.
Special Immigrant Juvenile Cases: Normally, a guardianship is for children under eighteen (18) years of age; however, in special immigrant juvenile cases, a guardian may be appointed for immigrants under the age of twenty-one (21).
When a request for guardianship of a special immigration juvenile petition is granted the child will become a legal resident of the United States.
Move Away Orders: Guardians are not generally permitted to permanently move a child a substantial distance from the child’s parent(s). A substantial distance is determined on a case-by-case basis. The guardian may move the child a substantial distance when there is a termination of parental rights, the parent(s) consent to the move, or a judge allows the move-away over the objection of the child’s legal parent(s), or other guardians.
Child Support & Guardianship: The legal parents of a child and the guardian of the same child are jointly responsible for the financial needs of the child. Child support orders may be established by either the parent(s), or the guardian(s), in order to assist in the cost related to raising the minor child.
Note: Guardians may claim health insurance benefits for a minor child that is the subject of the guardianship (CHAMPUS or TRICARE). Guardians may also claim SSI benefits for the child’s disability and may claim a child as a dependent on taxes.
Note: Federal and California tax laws change frequently; therefore, a person who is the legal guardian of a child, and a person who has his or her child under guardianship by another person (a guardian), should contact a guardianship lawyer and/or his or her tax professional, in order to learn the most current law as it relates to taxes and guardianship.
Court Supervision of Guardianship: Guardianship are subject to periodic review and supervision. A guardian must request court permission before making major decisions on a child’s non-emergency surgery, permanent residential move, or psychological treatment and medications; however, court permission is not ordinarily required for the guardian to grant permission to the minor child to obtain a driver’s license or join the armed services.
Contesting a Guardianship
Contesting, or objecting to, a guardianship should never be handled by anyone other than an experienced family law lawyer familiar with guardianship law. The possible basis of objecting to a proposed guardianship are as varied as the number of reasons a person seeks a guardianship in the first instance.
Common objections and/or defenses to a proposed guardianship include, but are not limited to, the following: lack of evidence to demonstrate a parent’s unfitness to care for his or her child, evidence that the proposed guardian is unfit to care for a child, and procedural and technical defenses to the introduction of the petitioner’s evidence, just to name a few.
Caution: Allegations made by petitioners for guardianship often include claims of a parent(s)' willful child endangerment or neglect. Both willful child endangerment and child neglect, are crimes. This means that any statement made by either the petitioner, or the respondent, in a guardianship case may be used against the prospective guardian or the parent(s) of the minor child in criminal court. A litigant to a guardianship case, especially a litigant who is objecting to a proposed guardianship, should consult an attorney familiar with criminal defense, family law, and guardianship law, before he or she proceed with his or her case.
Note: Parental rights are very strong and guardianship petitions are complicated; neither the petitioner, nor the respondent, to a guardianship petition should proceed without first consulting a guardianship lawyer.
Terminating the Guardianship
A guardianship may be terminated upon successful petition to terminate the guardianship that is filed by the minor’s parent(s), a competing guardian, an adoptive stepparent, or by the court. Termination of the guardianship is allowed upon a showing of good cause as to why the guardianship should be terminated.
Guardianship v. Grandparents’ Rights
The difference between a guardianship and grandparents’ rights is that a guardianship establishes a legal right to make important decisions on raising and caring for a child and/or the child’s assets. A guardian does not have to be the grandparent of the child.
Also, grandparents’ rights to visitation are limited to an amount of visitation that is necessary to maintain previously established bonds between a child and his or her grandparent. Grandparents’ rights do not include rights to raise minor children and make important legal decisions for them. For more information on the visitation rights of grandparents, see Grandparents’ Rights.
Guardianship v. Stepparent Adoption
With guardianship, the child’s parents’ rights are not necessarily terminated and the natural or adoptive parent may, in some situations, petition the court to visit the child or terminate the guardianship and reestablish the right(s) of the parent to raise and care for a child. The court also has the right to supervise the guardianship. To adopt a child means that rights of the natural or previously adoptive parent(s) of a child are permanently terminated and the court does not have the right to supervise the rearing of the adopted child. Also, children that are adopted have inheritance rights unlike children subject to a guardianship. For more information, please see Stepparent Adoptions.
Note: If a guardian maintains full custody, without visitation of the child by the child’s parent(s), the guardian(s) may petition court to terminate parental rights; thereafter, the guardian may apply for an adoption of the minor child; however, the court is not likely to terminate a parent's rights unless there are at least two persons available to act as guardians for the child.
Guardianship v. Child Custody Rights
The main difference between a guardianship and child custody rights is that a guardianship is almost always brought be a person who is not the parent of the minor child subject to the proposed guardianship. Also, with guardianship, the child is almost always placed in the exclusive physical custody of the guardian and the guardian is given complete control over the raising and caring of the child. On the other hand, child custody rights are almost always, though not required to be, brought by the child’s parent against the other parent. Also, child custody rights are not usually exclusive, but rather, shared with the child’s other parent.
For more information, contact our guardianship and family law lawyers for a free case review. Our guardianship lawyer are experienced and successful and we have handled hundreds of cases throughout the Inland Empire, including contested guardianship cases arising out of Redlands, Fontana, Rialto, Colton, Yucaipa, San Bernardino, and more. Our office is staffed six (6) days a week (Mon – Sat) and we have Spanish speaking attorneys available. Call today.
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Selected Legal References for California Guardianship Law
Probate Code 1500: Subject to Section 1502, a parent may nominate a guardian of the person or estate, or both, of a minor child in either of the following cases:
(a) Where the other parent nominates, or consents in writing to the nomination of, the same guardian for the same child.
(b) Where, at the time the petition for appointment of the guardian is filed, either (1) the other parent is dead or lacks legal capacity to consent to the nomination or (2) the consent of the other parent would not be required for an adoption of the child.
Probate Code 1500.1(a): Notwithstanding any other section in this part, and in accordance with Section 1913 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), consent to nomination of a guardian of the person or of a guardian of the person and the estate given by an Indian child’s parent is not valid unless both of the following occur:
(1) The consent is executed in writing at least 10 days after the child’s birth and recorded before a judge.
(2) The judge certifies that the terms and consequences of the consent were fully explained in detail in English and were fully understood by the parent or that they were interpreted into a language that the parent understood.
(b) The parent of an Indian child may withdraw his or her consent to guardianship for any reason at any time prior to the issuance of letters of guardianship and the child shall be returned to the parent.
Probate Code 1502(a): A nomination of a guardian under this article may be made in the petition for the appointment of the guardian or at the hearing on the petition or in a writing signed either before or after the petition for the appointment of the guardian is filed.
(b) The nomination of a guardian under this article is effective when made except that a writing nominating a guardian under this article may provide that the nomination becomes effective only upon the occurrence of such specified condition or conditions as are stated in the writing, including but not limited to such conditions as the subsequent legal incapacity or death of the person making the nomination.
(c) Unless the writing making the nomination expressly otherwise provides, a nomination made under this article remains effective notwithstanding the subsequent legal incapacity or death of the person making the nomination.
Probate 1510(a) [abbrev.]: A relative or other person on behalf of the minor, or the minor if 12 years of age or older, may file a petition for the appointment of a guardian of the minor. A relative may file a petition for the appointment of a guardian under this section regardless of the relative’s immigration status.
(b) The petition shall request that a guardian of the person or estate of the minor, or both, be appointed, shall specify the name and address of the proposed guardian and the name and date of birth of the proposed ward, and shall state that the appointment is necessary or convenient.
(c) The petition shall set forth, so far as is known to the petitioner, the names and addresses of all of the following:
(1) The parents of the proposed ward.
(2) The person having legal custody of the proposed ward and, if that person does not have the care of the proposed ward, the person having the care of the proposed ward.
(3) The relatives of the proposed ward within the second degree.
(4) In the case of a guardianship of the estate, the spouse of the proposed ward.
(5) Any person nominated as guardian for the proposed ward under Section 1500 or 1501.
(6) In the case of a guardianship of the person involving an Indian child, any Indian custodian and the Indian child’s tribe.
(d) If the petitioner or proposed guardian is a professional fiduciary, as described in Section 2340, who is required to be licensed under the Professional Fiduciaries Act (Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code), the petition shall include the following:
(1) The petitioner’s or proposed guardian’s proposed hourly fee schedule or another statement of his or her proposed compensation from the estate of the proposed ward for services performed as a guardian. The petitioner’s or proposed guardian’s provision of a proposed hourly fee schedule or another statement of his or her proposed compensation, as required by this paragraph, shall not preclude a court from later reducing the petitioner’s or proposed guardian’s fees or other compensation.
(2) Unless a petition for appointment of a temporary guardian that contains the statements required by this paragraph is filed together with a petition for appointment of a guardian, both of the following:
(A) A statement of the petitioner’s or proposed guardian’s license information.
(B) A statement explaining who engaged the petitioner or proposed guardian or how the petitioner or proposed guardian was engaged to file the petition for appointment of a guardian or to agree to accept the appointment as guardian and what prior relationship the petitioner or proposed guardian had with the proposed ward or the proposed ward’s family or friends.
(e) If the proposed ward is a patient in or on leave of absence from a state institution under the jurisdiction of the State Department of State Hospitals or the State Department of Developmental Services and that fact is known to the petitioner or proposed guardian, the petition shall state that fact and name the institution.
(f) The petition shall state, so far as is known to the petitioner or proposed guardian, whether or not the proposed ward is receiving or is entitled to receive benefits from the Veterans Administration and the estimated amount of the monthly benefit payable by the Veterans Administration for the proposed ward.
(g) If the petitioner or proposed guardian has knowledge of any pending adoption, juvenile court, marriage dissolution, domestic relations, custody, or other similar proceeding affecting the proposed ward, the petition shall disclose the pending proceeding.
(h) If the petitioners or proposed guardians have accepted or intend to accept physical care or custody of the child with intent to adopt, whether formed at the time of placement or formed subsequent to placement, the petitioners or proposed guardians shall so state in the guardianship petition, whether or not an adoption petition has been filed.
(i) If the proposed ward is or becomes the subject of an adoption petition, the court shall order the guardianship petition consolidated with the adoption petition, and the consolidated case shall be heard and decided in the court in which the adoption is pending.
(j) If the proposed ward is or may be an Indian child, the petition shall state that fact.