In California, legal guardianship is the process by which the court appoints someone other than the child's parents to take care of the child. The guardian can either have custody of the child or manage the child's property (estate). In some cases, they may do both. Guardianships are usually for children under 18 or those who are under 21 and seeking special immigrant juvenile status. 

Guardianship hearings are either probate court guardianships or juvenile court guardianships. In this article, we will focus primarily on juvenile court guardianships.

Guardianship of the Person

During a guardianship of the person proceeding, the court will appoint a legal guardian to care for the child when the parents cannot. The guardian would be awarded full legal and physical custody of the child and would have the same obligations as a parent. The appointment of a legal guardian does not terminate the parents' parental rights. When it is in the child's best interest, the court may end the guardianship, appoint a new guardian, or return custody of the child to the parents. 

Who Can Act as a Guardian?

Anyone can act as a guardian so long as they are able to raise the child and provide them with a safe and stable home environment. This includes relatives, family friends, or others who are not the parents of the child. Guardians are supervised by the court to ensure that the child's best interests are being met by the arrangement. 

When is Guardianship of the Person Required?

The court may order a guardian to take over the rearing of the child when the parents are unable to care for the child themselves. For example, if one or both parents:

• Have a serious physical or mental illness

• Are in the military and deployed overseas

• Are in a long-term rehabilitation program

• Are incarcerated

• Abuse drugs or alcohol

• Have a history of abusive behavior

What are the Guardian's Rights and Responsibilities?

The guardian of a child has all the same legal rights and responsibilities that a parent has. This includes:

• Providing food, shelter, and clothing;

• Enrolling the child in school and helping the child with their education;

• Caring for the child's health and making medical and dental decisions;

• Managing the child's finances

• Giving permission for the child to apply for a driver's license, enlist in the military, get married; and

• Taking responsibility for any harm the child may cause, whether it is intentional or negligent. 

Temporary Versus General Guardianship

Temporary guardianships are necessary when there is an emergency that requires the guardianship to be set up quickly. The individual who makes a request to be appointed as a temporary guardian must demonstrate “good cause” to the court. Examples of when a temporary guardianship may be needed include:

• The child needs emergency medical treatment; or

• Both parents are dead, incarcerated, incapacitated, minors, or otherwise unable to care for the child.

Temporary guardianship is considered an emergency order. The person filing for temporary guardianship must also file for general guardianship at the same time. Temporary guardianship ends when a general guardian is appointed. 

Any request to become a guardian of a child that is not temporary is considered a general guardianship. Guardianships automatically end when:

• The child turns 18;

• The child is adopted, marries, enters into military service, or is declared emancipated;

• The child dies before turning 18;

The court can also end a guardianship through a court order. The judge will consider what is in the child's best interests when ending a guardianship. 

The Guardianship Process in California

The process of becoming a guardian in California begins by filling out several forms and filing them with the court. California further requires the person requesting to be appointed a legal guardian of the child to “give notice” to the child's relatives and others. This step is quite important. The rules must be carefully followed. 

Any individual who agrees that the person should serve as guardian of the child can sign a consent and waiver of notice. It is possible that one or both parents will object to the guardianship request.

The California courts also require that an investigation be made and a report submitted to the court. During the hearing, the judge will review the report and decide whether to grant the petitioner their request to become guardian of the child. 

If the court orders guardianship of the child, then it will follow up with the legal guardian every year through a confidential guardianship status report. 

Guardianship Versus Adoption in California

Guardianship does not terminate the parental rights of the parents. Adoption generally does. If a child is adopted by another individual, then the birth parents would no longer:

• Have parental rights over the child; or

• Have financial obligations to the child.

Further, adoption is considered permanent, whereas guardianships end when the child turns 18. This is important for inheritance reasons. Adopted children automatically inherit from their parents' estate. Further, the adopted parents have the right to change the child's name if they want to. Adopted families are not supervised whereas guardianships are supervised by the court. 

What Parental Rights Do Parents Have With a Child Under Legal Guardianship?

Under California law, when a child is under legal guardianship with an adult other than their parents, the child's parents retain their legal rights over the child. The parents may ask for reasonable contact with the child. In some situations, the parent can also seek to regain full custody of the child. This is often the case when a parent returns from military deployment. 

When determining whether or not to order visitation with the parents or reinstate full custody, the court will look at what is in the best interests of the child. 

Talk to a Sacramento, CA Guardianship and Custody Attorney Today

The Sacramento guardianship and child custody attorneys at Wagner Family Law can help your family through a difficult period by representing your interests in guardianship hearings. Call our office today to schedule an appointment, and we can begin filling out forms and discussing your situation right away.