Like every U.S. state, California has its own laws and procedures for securing guardianship of a child. Basically, a guardian is a person over the age of 18, other than a parent, who has legal custody and control over a child. As well as having the right to make all decisions concerning the child's welfare, the legal guardian has various responsibilities for the child. In an emergency situation, you may be able to get temporary legal guardianship of a child. Another option is informal guardianship, where you have physical custody of the child but only certain rights to make legal decisions affecting that child.
Meaning of Guardianship
If you are a guardian of a minor child, you are entitled to make decisions for that child, and the control of a biological or adoptive parent is relinquished. The three types of guardianship are: informal guardianship, temporary legal guardianship and permanent legal guardianship. Guardianship rights and duties may include ensuring the maintenance and care of the minor child; making financial, educational and medical decisions on behalf of the minor child; and reporting to the court on the guardianship status on an annual basis.
Guardianship of a child's estate gives you the power to manage the child’s income, money or other property until she reaches the age of 18. Generally, the court appoints a surviving parent to be the guardian of a child's estate. If a child receives Social Security benefits or state welfare, she does not need a guardian for her estate.
Guardianship Vs. Adoption
A guardianship is different from an adoption because parents retain their parental rights when a guardian is appointed for their child. They may also be entitled to visitation of the child during the guardianship period. A guardianship may also be supervised by the court and can be terminated at the parents' request, provided the court is satisfied that it is in the child's best interests to be back in the custody of his parents.
When a child is adopted, his parents' parental rights are terminated forever, and they have no right to visitation or any other form of relationship with the child. Adoptive families are not supervised by the court, and biological parents have no legal recourse after adoption if they wish to resume their parental rights if their circumstances change and they are able to meet all the child's needs and provide him with a stable home.
Informal Vs. Legal Guardianship
The main difference between informal guardianship and legal guardianship is that an informal guardian usually has physical custody of the child, but only limited rights to make legal decisions affecting that child. You need to have formal legal custody to make legal decisions on behalf of a child.
To become an informal guardian of a minor child, you need an informal guardianship form in California. This may be a letter of guardianship authorization signed by the child’s parents that gives the informal guardian permission to care for the child and make certain decisions on their behalf while the child is under her care. The letter does not terminate or suspend a parent’s legal rights, nor does it give the informal guardian official legal custody of the child. With this letter, the informal guardian can enroll a child in school, give consent to essential medical care and apply for Social Security benefits for the child.
Alternatively, you may obtain an informal caregiver's authorization affidavit, which can be used instead of a letter of guardianship authorization signed by the child's parents. However, only certain family members are entitled to an informal caregiver's authorization affidavit, including a brother, sister, uncle, aunt, niece, nephew, first cousin and grandparent. The affidavit is not an official court form and does not have to be signed by the parents, but the parents can cancel it at any time. Ask the clerk of the court in the county in which the child lives for the correct form and complete it in full according to the instructions provided.
An informal guardianship may be the best option if a child’s parent requires long-term hospitalization or needs to leave the United States for a significant length of time, but an informal guardianship comes with certain restrictions. For example, an informal guardian cannot put a child on her medical insurance policy, consent to a disability assessment or sign a child’s special education plan if the parent is available to make that decision.
Temporary Guardianship in California
Temporary legal guardianship and permanent legal guardianship both allow an adult to make important decisions on behalf of a minor child. While both require court approval, temporary legal guardianship may be granted by the court on short notice, mainly if there is an emergency situation concerning the child. A temporary order may be granted until a full hearing on formal legal guardianship can be held.
So, how does temporary guardianship work? Basically, it works exactly the same as permanent guardianship, but for a shorter period of time and on an emergency basis. You need to file a petition for appointment of legal guardianship before requesting an order for temporary emergency guardianship. In most cases, a temporary legal guardianship and permanent legal guardianship order are filed at the same time.
California Legal Guardianship Conditions
To establish legal guardianship for a minor child in California, you must be at least 18 years old, and not have a conviction for a misdemeanor or felony. Sometimes, the court takes the child's wishes into account. If a will or power of attorney naming a legal guardian is not available, the court typically appoints a close family member.
To appoint someone the legal guardian of a child, the California court must be satisfied that it is in the child's best interests, and that the child's parent or parents are unable to care for him. Reasons the parents may be unable to care for the child include death, illness, incarceration, military duty abroad, profound financial issues, alcoholism, drug addiction, domestic violence and deportation. This list is not exhaustive, and there may be other circumstances in which the parents are unable to care for the child. However, simply disagreeing with the manner in which a parent is raising a child is not an acceptable reason for the court to take custody of the child away from her parent and appoint someone else as the child's legal guardian.
Legal Guardianship Process in California
You must file a guardianship case at the superior court in the county in which the child lives. While the exact forms may vary by county, they typically include:
- Petition for Appointment for Guardian of Minor, plus any required attachments.
- Guardianship Petition-Child Information Attachment.
- Notice of Hearing for Guardianship or Conservatorship.
- Consent of Proposed Guardian, Nomination of Guardian, Consent to Appointment of Guardian and Waiver of Notice.
- Duties of Guardian.
- Letters of Guardianship.
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
- Confidential Guardian Screening Form.
The court may require other forms to be filed, so ask the clerk of court for all necessary information.
To get temporary guardianship of a child, you have to complete these documents at the same time as your Petition for Legal Guardianship:
- Petition for Appointment of Temporary Guardian of the Person. Complete Petition for Appointment of Temporary Guardian if you are also asking for guardianship of the child’s estate, plus any required attachments.
- Order Appointing Temporary Guardian.
- Letter of Temporary Guardianship.
The court may require other forms to be filed for temporary guardianship, so check with the clerk of court that you have everything you need to proceed.
When you file the paperwork, you must pay a fee, which changes periodically. As of August 2018, the fee to file a petition for guardianship at a California Superior Court is $435. Ask the clerk what the current filing fee is and what payment methods are acceptable. If you cannot afford the filing fee, ask for a fee waiver application form. Complete and file this form with all of your other guardianship paperwork. An investigation fee is also payable, which may vary by county. For example, as of August 2018, the investigation fee in the county of San Diego is $450 for a partial investigation and $800 for a full investigation.
Once you have filed the guardianship petition, you need to give notice to all interested parties, including any agencies involved with the child. The person who currently has legal custody of the child, and the child herself if she is 12 years of age or older, must receive a copy of the papers in person. The child's grandparents, siblings and your county's human services or social services department must get a copy of the papers by mail. If you are not related to the child, California Department of Social Services must also receive a copy by mail. You are not allowed to hand deliver or mail copies of the papers yourself, but anyone 18 years of age or older who is not connected to the case in any way may deliver the papers. When the interested parties receive notice, they have the opportunity to contest your request for guardianship of the child.
A full or partial investigation will be carried out, depending on the complexities of the case and whether your request for guardianship is contested. You will be interviewed by a court investigator, who may also speak to the child. A comprehensive background check, including a home inspection and a thorough review of the child’s school and medical records, may follow. The court investigator uses all this information to make a recommendation to the judge. As with all court proceedings involving children in California, the investigator's decision must be based on what is in the best interests of the child. However, the judge is not bound by the investigator's recommendation.
If you are a relative of the child and requesting an order to become the child's guardian, the investigation is carried out by a Family Court Services agent. If you are a nonrelative, a Health and Human Services agent investigates. If the petition is for guardianship of the child's estate only, a Probate Court Investigator is responsible for the investigation.
The final step is a court hearing, which you must attend. In most cases the court hearing is held between 60 and 90 days after you file your petition for guardianship. The judge will review the petition and all reports and make a decision about legal guardianship of the child. If the judge finds in your favor, he issues Letters of Guardianship. These serve as official recognition of legal guardianship of the child and authority for all decision-making on behalf of the child. Take the Order Appointing Guardian of the Minor form – available from the clerk of court at no charge – with you to the hearing. If you are appointed as the child’s guardian, the judge will sign this form, which is then filed with the clerk of court.