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Guardianship Law California

A guardianship is defined as the legal right, granted to a person (guardian), to raise and care for another person’s minor child, because the biological or adoptive parent(s) of the minor child is either unfit, or unavailable, to raise and care for the child. A minor child is a person under the age of eighteen (18). Reference to parent(s) in this article refers to biological and/or adoptive parent(s).

Guardianship rights include the right to make legal decisions, and take decisive actions, concerning the minors child’s medical care, dental care, education, religion, travel, safety, emotional well-being, associations, and discipline (See guardianship of the person).

Note: A guardian can also be appointed to manage a minor child’s estate, including real and personal property, bank accounts, securities, and inheritance (See 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 decisions on a child’s health, safety, medical care, dental care, extra-curricular activities, education, religion, travel, discipline, 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.

Guardianship of the estate

A guardianship of the estate is a guardian that is appointed to manage the property and assets of a minor child. Property and assets includes bank accounts, inheritance, securities, real and/or personal property, and valuable heirlooms.

A guardianship 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.

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.

More than one guardian may be appointed to serve as the guardians of the person 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.

How to File for Guardianship of a Minor Child

Legal documents must be filed in probate court in order to establish a legal guardianship. Common legal forms required for guardianship petitions are found at guardianship forms.

Caveat: The legal forms required to establish a guardianship do not provide information on any of the following: how to prepare guardian 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.

Temporary v. Permanent Guardianships

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 guardianships last up to sixty (60) days or until the emergency ceases.

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 a ward of the state; however, a person may petition the juvenile dependency court to be appointed as the child's guardian (as opposed to the child becoming a ward of the state). The juvenile court will assign case workers to conduct a suitability assessment of the person(s) seeking to become guardian(s). For more on guardianships in juvenile dependency court please see juvenile dependency hearings.

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 permanent legal residence of the United States. For information on special immigration juvenile guardianship petitions, please contact our guardianship attorneys at 909-725-8199.

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.

Child Support for the Guardian: The 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 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.

Court Supervision of Guardianships: Guardianships 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 required for the guardian to grant permission to the minor child to obtain a driver’s license or join the armed services.

Contesting the 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 defenses are as varied as the number of reasons why a guardian seeks a guardianship in the first instance. Common defenses include: lack of evidence to demonstrate unfitness to care for a child by the parent(s), evidence that the guardian is unfit himself or herself, 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 appointment often include claims of a parent(s)' willful child endangerment or neglect. Willful child endangerment is a crime (See PC 273a(A)). 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 respondent should retain an attorney familiar with both criminal defense and guardianship law.

Remember, parental rights are very strong and guardianship petitions are complicated; neither the petitioner, nor the respondent, to a guardianship petition should proceed without 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, 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’ Visitation 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, please see grandparents’ rights.

Guardianship v. Family Adoption Rights

The difference between a guardianship and adoption of a child 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. With guardianships, 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 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 and thereafter apply for an adoption of the minor child.

Guardianship v. Child Custody Rights

The difference between a guardianship and child custody 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. The guardian does not have to be relative of the child. In guardianships, 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. 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 on custody rights, please see child custody.

For more information, contact our guardianship and family law lawyers for a free consultation. Our guardianship lawyer are experienced and successful. Our office is staffed seven days a week with guardianship and criminal defense attorneys. Spanish speaking attorneys available. Call today.

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