One of the most important jobs of the California Superior Court is to ensure the well-being of the children in our state. When parents are absent, incapacitated, or unwilling to fulfill their parental responsibilities, questions about custody become more complex. What happens to the children in their care?
If there is a significant risk to the child’s safety or well-being due to abuse or neglect, it is essential to report it to the Child Protective Services in your county. See the following link for the Emergency Response Child Abuse Reporting Telephone Numbers in each California County: https://www.cdss.ca.gov/reporting/report-abuse/child-protective-services/report-child-abuse.
However, if the child is in a stable situation, and there is no current risk to their safety or well-being, in California there are several avenues for a person to ensure that a capable adult has the authority to care for a child, including power of attorney, the caregiver’s affidavit, and legal guardianship. Each option serves a specific purpose and should be chosen based on individual circumstances.
Legal guardianship is a legal arrangement that grants a willing adult the authority and responsibility to care for and make decisions on behalf of a child whose parents are unable to do so. This article aims to provide a comprehensive overview of the process for obtaining legal guardianship in California and explore alternative options to legal guardianship.
Understanding Legal Guardianship:
Legal guardianship is a legal status granted by a court, empowering one or more caretakers to make decisions concerning the welfare and upbringing of a child. A legal guardianship does not terminate a parent’s rights to custody, but temporarily suspends those rights and transfers those rights and responsibilities to the guardian until further order of the court.
A legal guardianship is typically sought when a child's parents are unable or unwilling to fulfill their parental obligations. Legal guardianship is a serious commitment that bestows upon the guardian the rights and responsibilities usually held by a parent. Legal guardianship is the only way to legally transfer custody from a parent to a non-parent.
There are two types of legal guardianships – those of the person and those of the estate. Legal guardianships of the person are more common, and are the only kind of legal guardianship addressed here.
Process for Obtaining Legal Guardianship in California:
Assessing eligibility: To be eligible for legal guardianship in California, one must be at least 18 years old and demonstrate the ability to provide for the child’s physical, emotional, and educational needs. The proposed guardian must be able to show that they are able to adequately care for the child.
Filing a petition: The first step in the process is to file a legal guardianship petition with the California superior court in the county where the child lives. The petition must include specific information about the child, the proposed guardian, and the reasons for seeking guardianship. A petition may be filed by the proposed guardian, by the minor child if he/she is over the age of 12, or by a third-party. (Cal. Prob. Code § 1510(a).) The court may appoint the proposed guardian as the guardian of the child regardless of the proposed guardian’s immigration status. (Cal. Prob. Code § 1510.) Among other information, the petition must set forth the names and addresses of all second-degree relatives of the child (i.e., parents, grandparents, and all siblings). (Cal. Prob. Code § 1510(b).) After the filing of the Petition, the court will set a hearing for the proposed guardian and the child to attend.
Court investigation: During the pendency of the case, the court will conduct an investigation to determine the suitability of the proposed guardian. (Cal. Prob. Code § 1513.) This investigation involves interviews, background checks, and home visits to assess the prospective guardian's ability to provide a safe and stable environment for the child. The investigator will write a report and provide it to the court. The court must consider the report when it makes its findings regarding the legal guardianship.
Granting of the Legal Guardianship: If there is no one opposed to the appointment of the proposed guardian as the legal guardian of the proposed ward, and the investigator finds that the proposed guardian is suitable, the court may grant the guardianship once the proposed guardian and petitioner have completed all the procedural steps required by state law. If someone opposes the guardianship, then the court will set an evidentiary hearing to determine whether it is necessary, convenient, and in the best interest of the child to be placed with the proposed guardian.
Power of Attorney: In situations where the parents are temporarily unable to care for their child, such as military deployment, travel, or medical emergencies, a power of attorney can be used. A power of attorney is a legal document granting authority to another person (the attorney-in-fact) to make decisions for the child during a specified period. This option is temporary and does not require court involvement. It may not be sufficient to enroll a child in school or to obtain more than emergency medical care. It also requires the parents’ consent and signature in front of a notary.
Caregiver's Affidavit: A caregiver's affidavit is another alternative when the child's parents are temporarily unavailable. This option is available when the parents are unable to care for the child due to incarceration, hospitalization, deportation, or other similar circumstances. The affidavit allows the caregiver to enroll the child in school, obtain medical care, and make other essential decisions for the child, without obtaining legal guardianship. The affidavit requires that the child live with the caregiver, regardless of where the parents live, and that the parents consent to the care of the child by the caregiver. Like the power of attorney, the rights available to the caregiver are limited, and are not sufficient for caring for a child in long term. The caregiver’s affidavit requires consent of the parents, but does not require their signatures.
Legal guardianship is a crucial legal arrangement that allows individuals to assume responsibility for a child's well-being when their parents are unable to fulfill their parental duties. In California, the process for obtaining legal guardianship involves filing a petition, undergoing a court investigation, and obtaining court approval. However, alternative options like power of attorney and the caregiver's affidavit provide temporary solutions for specific situations. If you are considering legal guardianship or need assistance determining the most appropriate option, please consider consulting with our Madison Law Family Law attorneys, who are experienced in custody issues, including legal guardianship.
- California Probate Code § 1510
- California Probate Code § 1513
- California Courts - Guardianship: https://www.courts.ca.gov/selfhelp-guardianship.htm
- California Courts - Guardianship Forms: https://www.courts.ca.gov/1214.htm?rdeLocaleAttr=en
- California Courts – Caregiver’s Affidavit: https://www.courts.ca.gov/documents/caregiver.pdf