Guardianship

FAQs

No. You do not have to have a lawyer when you go to court. In California, several hundred thousand people each year go to court without a lawyer. This is called being in "pro per" -- the legal term for a person representing him or herself without a lawyer. However, some cases are complicated. This is when a lawyer can be most helpful.

You may find that you need a lawyer if:

  • anyone involved has an estate with substantial assets;
  • anyone involved lives outside of California;
  • there are some other legal proceedings going on at the same time;
  • anyone involved has special needs (physically/emotionally disabled);
  • anyone involved is a member of the armed services, or
  • anyone involved is Native American (in which case, federal laws may apply).

Lawyers are trained to research the intent of laws and judicial decisions and apply the law to the specific circumstances you face. In addition to skills in legal research, a lawyer will usually have:

  • familiarity with courtroom rules and procedures;
  • an understanding of when a witness is needed, and how he or she should be prepared for a trial;
  • an understanding of when an expert, consultant, or investigator is needed – where to find such a person, and how much is reasonable to pay; and
  • experience with different strategies for effective presentation of a case in court.

If you cannot afford to hire a lawyer there are several options that may help.

  1. Every superior court in California has legal help available in family law and in small claims cases. Several superior courts can also help you with other legal issues. Find out what services are available at your court.
  2. There are legal aid offices in many cities throughout California. These are non-profit organizations that provide free legal services to people below a certain income level. Find legal aid offices in your area and find out what areas of law they cover.
  3. If you don’t have much money but the other party in your case does, the court might order the other party to pay for some or all of your lawyer’s fees. (You would have to ask the court for this. It is not automatic.)
  4. Many bar associations have Modest Means Panels made up of lawyers who will take certain kinds of cases for a reduced fee. (You would have to find your local bar association and ask if it could help you with this.)
  5. You may be able to find a lawyer who will coach you on representing yourself (called "coaching"), or who will only handle (and charge you for) the more complicated parts of your case. This is called "limited scope representation" or "unbundled legal services.” (Your local bar association may have a list of lawyers who do limited scope representation.)

Generally, lawyers specialize in a particular area of the law. They may specialize in trial law (civil or criminal), bankruptcy law, elder law, family law, etc. When working with a lawyer, it is important to know his or her specialty.

NOTE: A lawyer cannot represent you in Small Claims court but they may help you prepare for your case.

If you decide to hire a lawyer, make sure you understand:

  • what you will be paying for,
  • how much it will cost, and
  • when you will be expected to pay your bill.

You may want to talk to several attorneys before you hire one.

You can also find attorneys listed in the Yellow Pages of the telephone directory, or through the internet.

There are parents who are in a situation in which they can't take care of their child as well as he or she deserves.

Reasons why it might be better for a child under the age of 18 to live with someone other than his or her parents:

  • A parent has a long physical illness;
  • A parent is in the military and is being sent overseas;
  • A parent is going into a rehab program;
  • A parent is going to prison;
  • A parent has a substance abuse problem;
  • A parent has an anger management problem;
  • Or there is some other reason altogether.

There are California laws that define what is in the "best interest" of that child.

These include the right of that child to be raised in a permanent, safe, stable and loving environment.

When deciding what is in the best interests of a child a court would consider:

  • Any history of abuse by one parent or a person seeking custody of the child;
  • Use of controlled substances or alcohol by the person seeking custody of the child, or by the parents.
  • And other factors as presented to the court.
  • The court will consider the child's wishes so long as he or she is old enough and able to reason.

There are also California laws that define what is a "detriment" to that child. A detriment is something harmful to the child.

Domestic violence in a household where a child lives is considered harmful to that child. It is also considered harmful to remove a child from a home where he or she is taken care of by someone who is fulfilling the child's physical and psychological needs. A finding of detriment does not require that the court find a parent unfit.

Under California law, there are a number of ways to care for a child if his or her parents cannot:

  • Private agreements. A private agreement can be made between the parents and a caregiver. The agreement should be written down on paper, stating that the caregiver has "custody" of the child. It should also give the caregiver permission to get medical help for the child. The caregiver or the parents can cancel this agreement at any time.
  • Caregiver's authorization affidavit. The caregiver can fill out and file a form called a "Caregiver's Authorization Affidavit." This lets the caregiver sign the child up for school and agree to school-related medical care. If the caregiver is related to the child, he or she can also get medical treatment for the child.

Get a Caregiver's Authorization Affidavit and instructions. The caregiver or the parents can cancel this affidavit at any time.

  • Power of Attorney. The parents could give a caregiver Power of Attorney. This would give the caregiver permission to do things like enroll their child in school or go to the doctor. This is a legal document that is signed and notarized. It is not a court order. This means other people are not required to follow a Power of Attorney. The caregiver or the parents can cancel the Power of Attorney at any time.
  • Joint Guardianship. If a parent has a terminal illness, he or she may ask the court to appoint a joint guardian. This person would share in the care and responsibility for their child. If the parent dies, the joint guardian becomes the sole legal guardian for their child. No further court action would be necessary.
  • Other financial arrangements. A caregiver could make financial arrangements for a child's property. For example, they could set up a blocked account or a trust. Most banks and courts won't release money for a child under age 18 unless there is a guardian.
  • Legal guardianship. A potential caregiver could request that he or she be given legal custody and responsibility for the child, including feeding, clothing, educating, keeping safe and medically caring for the child.

A person may become a legal guardian only if he or she files legal papers in court, appears at a court hearing, and is appointed guardian by a judge. Neither the guardian nor the parents can cancel the guardianship without a court order.

If you are not sure which option is best for you, you may want to consult with a private attorney. Find a lawyer.

According to California law, it is in the "best interest of children" to be raised in a permanent, safe, stable, and loving environment.

To decide what is in the best interest of a child, the court will consider:

  • the health, safety, and well-being of the child;
  • any history of abuse by a parent or a person seeking custody;
  • abuse of drugs or alcohol;
  • the child's wishes if the child is old enough and able to reason;
  • other relevant information.

California law also defines "detriment to the child." Detriment means harmful, and includes:

  • domestic violence in a household where a child lives.
  • the harm of being removed from a home where he or she is taken care of by someone who is fulfilling the child's physical and psychological needs.

A finding of "detriment" does not require finding a parent is unfit.

ALMOST any person more than 18 years old may be a legal guardian - IF the court decides that that person is able to provide adequate proper care and guidance for the child.

  • The court will do a background check of the person asking to be guardian to try
    to make sure there is no reason that living with him or her would be detrimental
    to the child.

Normally, a guardian is someone the child already knows well:

  • a relative;
  • friends of the family; or
  • another interested person.

If a married couple is going to have a child live with them, they may both apply to be guardians or just one of them may apply.

  • In California, there is no legal preference for joint custody.

Raising a child is not always easy. Here are some things to consider when choosing a guardian for a child:

  • Does the potential guardian have the necessary maturity, experience, temperament, patience and stamina to take care of the child?
  • Is the potential guardian young enough or old enough to be a good caregiver for the child?
  • Does he or she have the material, emotional and community resources to take care of the child?
  • Does the potential guardian have a genuine interest in the child's welfare?
  • Does the potential guardian have some understanding of the emotional needs of the child?

NOTE: THE GUARDIAN BECOMES RESPONSIBLE TO THE COURT FOR THE WELFARE OF THE CHILD.

Sometimes, guardianship papers are needed during the time that the court is processing the general guardianship request. For example:

  • the child needs an expensive medical procedure and an insurance company will not cover the procedure if the child is not a ward of the insured;
  • the child's parent is homeless, using drugs, acting crazy and threatening to take the child away from the proposed guardian. The proposed guardian asks the police for help, and they say that without a guardianship order and letters there is nothing they can do;
  • the child's custodial parent is also a child.

In other situations, the proposed guardian just needs more time to solve a problem - such as serving all of the people who have a right to know that the guardianship case has been filed.

In cases such as those, the court can be requested to appoint a temporary guardian. At this time, the petitioner must show "good cause". (California Probate Code, Section 2250(b))

Learn to use fillable forms.

In California, there are 4 forms that need to be filled out and filed to request that a temporary guardian be appointed:

  • Petition for Appointment of Temporary Guardian (Form GC-110(P))
  • Order Appointing Temporary Guardian (Form GC-140)
    See the instructions for this form.
  • Letters of Temporary Guardianship (Form GC-150)
    See the instructions for this form.
  • Attachment to Judicial Council Form (Form MC-025 )
    See the instructions for this form.
Use this form for your attachments to other forms as needed.

Once you have filled in all of the forms to be the best of your ability, ask a court clerk to review your papers to make sure that they are all correct. When your papers are ready to file, take them with the completed general guardianship forms back to the clerk's office for filing.

Learn where to file the forms in your county.

NOTE: This is not a substitute for a general guardianship and is to be filed along with the general guardianship petition. A temporary guardianship will end when a general guardian is appointed by the court.

There may be situations in which a pregnant woman is in prison, is severely incapacitated in some way, or is in some other condition that encourages another person to seek custody of the baby.

A petitioner may petition the court to be appointed guardian of an unborn child, but the guardianship will not become effective until after the birth of the child.

Under California law, almost all unmarried people under the age of 18 years must have an adult who is responsible for their care. If the minor does not have a legal parent who can act as that adult, they may need a legal guardian.

A person may become a legal guardian only if he or she files legal papers in court, appears at a court hearing, and is appointed guardian by a judge. There are two types of guardianships:

  1. "guardianship of the person" (legal custody) and,
  2. "guardianship of the estate" (legal responsibility to manage the minor's assets)

Unless the minor's assets are more than $5,000.00, most guardianships will just be for the custody and care of the child.

It's very important to distinguish a guardianship from an adoption.

  • An adoption is a legal process that permanently ends the natural parent's rights and responsibilities toward the minor. The adopting parents become the legal parents.
  • In contrast, a guardianship establishes a legal relationship between the guardian and the child but keeps the legal relationship between the natural parent and the child intact. The natural parents remain the legal parents, but their parental rights are suspended during the period of the guardianship.

Like any other child custody order, a guardianship order can be modified at any time when this is in the best interests of the child.

A guardian of a person must care for and control the child. This includes giving the child food, clothing, a place to live, an education, medical dental care, protection, and physical and emotional growth.

  • The guardian has full legal and physical custody of the child. The parent's rights to make decisions for the child are suspended.
  • A guardian is responsible for making basic decisions about the child's education. The guardian decides where the child goes to school and in what programs the child participates.
  • A guardian decides where the child will live. Usually, the child will live with the guardian, but the guardian may decide that it is better for the child to live somewhere else.
    • The guardian must get court's permission before letting the child live with their parents.
    • The guardian must get the court's permission before moving the child out of California.
    • If the court lets them move out of state, the guardian must get a guardianship in the new state.
  • A guardian may make all medical decisions, give permission for medical treatment and consent to surgery for a child under 14 years old. A child over 14 must also consent to any surgery unless the guardian gets a court order or it's an emergency.
  • A guardian may get counseling or therapy for a child. A guardian may not put a child in a mental health facility without the child's consent or being appointed a mental health conservator.
  • The parents of a child have a duty to support the child financially, even if there is a guardian. A guardian is not obligated to support the child from the guardian's own funds, and the guardian may not use the child's own money unless the court orders it. The local child support agency may be contacted about collecting support from the child's parents. The child may also be able to collect benefits such as CalWORKs or Social Security.
  • The court may also assign the guardian additional responsibilities, such as attending counseling or parenting classes, obtaining specific services for the child, or following a scheduled visitation plan.

A guardian of the estate is a person who is the guardian of a child's money and property. This money and property is the "estate." A guardian of the estate must:

  • Collect and make a list of all the child's property
  • Find, get, and protect all money and property that are part of the estate;
  • Put all property in the estate's name; and for real estate, record copies of the Letters of Guardianship (Form GC-250) with the County Recorder in every county where the child owns real estate. See the instructions for this form.
  • Determinte the value of the child's property. This is done by getting a court-appointed probate referee, who will figure out how much the property was worth on the date the guardian was appointed. They will create and sign an inventory and appraisal of the value of the assets in the estate. The guardian, not the probate referee, is to figure out the value or worth of "cash items."
  • File financial reports with the court no more than 90 days after being appointed guardian. These reports must include the probate referee's inventory and appraisal.
  • Keep all the child's money and property separate from everyone else's money, including the guardian's own money. Unless there is a court order, a guardian cannot:
    • pay him or herself or his or her lawyer;
    • give away any part of the estate;
    • borrow money from the estate; or
    • spend the estate's money
  • Get permission from the court to use the estate money to pay for the child's support, maintenance, or education, if the child has a parent who is still alive, or has another source of support or money.
  • Keep complete and accurate financial records. Write down all of the money that comes in and all money that goes out, and keep receipts for everything bought with estate money.
  • Prepare a report, called an "accounting," one year after being appointed guardian and then every two years after that. If the guardian does not file the accounting, the court could order them to do so. The court also may remove a guardian for not filing the accounting. A guardian may look at California Probate Code, Sections 1061-1064, for explanations of how to format and present your accounting to the court. The accounting should include:
    • all money collected and all interest earned,
    • all money the guardian spent and for what,
    • the date of every transaction,
    • the purpose of every transaction, and
    • what is left after the estate's expenses are paid.
    • all receipts and other financial documents
    • an explanation of what he or she spent and why.
  • Other estate guardian duties may include getting and/or maintaining insurance coverage on the property.

A person becomes the legal guardian of a child only after he or she:

  1. files legal papers in court,
  2. appears at a court hearing,
  3. is appointed guardian by a judge - and
  4. gets Letters of Guardianship signed by the court clerk.

In California, a legal guardianship occurs when the court gives custody of a child under the age of 18, or the child's property, or both, to an adult relative or other caregiver. The guardian then has the authority to make decisions for the young child that a parent would normally make, and also assumes certain duties and obligations regarding the child's care and control.

The process is started when someone files guardianship papers in court. A court investigator will interview the parents, the child and the potential guardian, and make a recommendation to the judge. The judge will then review the case and decide whether to appoint the guardian, usually after a hearing. The court must find that the appointment is in the best interests of the child.

In California, the process the court uses to establish a Legal Guardianship involves 3 basic steps:

  1. Someone files guardianship papers in a probate court;
  2. The court may assign an investigator to interview the parents, the child and the potential guardian and make a recommendation to the judge;
  3. The judge reviews the case and decides whether to appoint the guardian, usually after a hearing.

NOTE: The court system is passive. It will not initiate the case, nor will it follow up with the case after a guardian has been appointed.

Guardianship cases are handled through the probate division of the Superior Court in the County in which the child lives.

However, if there is an existing custody order in another county -- such as from a divorce or other family court proceeding -- you must file in that county.

In California, there are three different court divisions that may be involved in cases concerning children:

  • family court,
  • juvenile court, and
  • probate court.

The purpose of guardianships in the probate court is to protect the rights of the child.

  • In probate court, the judge doesn't look for a risk of physical harm to or abuse to the child, as is done in juvenile court dependency proceedings.
  • In probate court, the judge doesn't make efforts at reunifying families and does not make orders providing timelines within which the family should reunite as is done in the juvenile court.

However, the probate court does have the power to grant visitation rights to parents of the child that is the subject of a guardianship.

When a guardianship case is filed, it is the right of the child’s family members – and others involved in the child’s life – to know what’s going on. This is sometimes referred to as "due process," and this is a basic right guaranteed by the United States Constitution.

Before a judge can grant any orders, he or she has to be sure that everyone received a copy of the court papers in time to get to court to tell the court his or her side of the story. What the judge will look for is forms called "Proof of Service." One Proof of Service or "Declaration of Due Diligence" form has to be filed for each person who has the right to be served.

In guardianship cases, the people who have to be served are:

  • both of the parents of the child (or the person with legal custody of the child now);
  • any person the parents have nominated to be guardian of the child;
  • the child, if he or she is more than 12 years old;
  • all of the child's grandparents - on both sides of the family (mother's parents and father's parents);
  • all of the child's brothers and sisters (or half-brothers and half-sisters, from either parent);
  • any adult with whom the child is living.

One way to show the judge what relatives have to be served is to do a simple chart. This could include the name of the person, that person's relationship to the child, and his or her address. For example:

Relationship Name Address
Child's mother Write her name Write her address
Her mother (the grandmother) Write her name Write her address
Her father (the grandfather) Write his name Write his address
Child's father Write his name Write his address
His mother (the grandmother) Write her name Write her address
His father (the grandfather) Write his name Write his address
The child (if 12+ years old) Write his or her name Write his or her address
Brother (if any) Write his name Write his address
Sister (if any) Write her name Write her address
Add as many lines as you need.......
  • If the name of the father is not known, write "unknown" in the spaces for his name, and for his father and mother's names.
  • If any of these people has died, write "deceased" next to their name.
  • If one of the relatives is in jail or prison, he or she still needs to be served.
  • If a relative is homeless or transient, make a "Declaration of Due Diligence" regarding that person.
  • If you don’t know where one or more of these people live now, the court will expect you to try very hard to find them. Tell the court that you've done everything you can think of to find them.

You could use the general Declaration form (Form MC-030) to put your chart on as a "Declaration of All Persons Related to the Child" in Guardianship cases.

If using Form (MC-030) for a "Declaration of Due Diligence"

AFTER YOU HAVE WRITTEN EVERYTHING YOU WANT TO SAY….

File the "Declaration" (with the "Proof of Service" forms that were filled out for the relatives you could find) at the court clerk’s office.

When a guardianship case is filed, some people have the legal right to know about it.

Before a judge can make any decisions, he or she has to be sure that everyone with this legal right received a copy of the court papers in time to get to court. This gives them the chance to tell the court their side of the story. What the judge will look for is forms called "Proof of Service."

One Proof of Service or "Declaration of Due Diligence" form has to be filed for each person who has the right to be served.

In guardianship cases, the people who have to be served are:

  • both of the child's parents (or the person with legal custody now);
  • any person the parents have nominated to be guardian of the child;
  • the child, if he or she is over 12;
  • all of the child's grandparents - the mother's parents and the father's parents;
  • all of the child's brothers and sisters including all half-brothers and half-sisters;
  • any adult living with the child.

If you don’t know where one or more of these people live now, the court will expect you to try very hard to find them. For example, it will expect you to look in the telephone directory for the area the person was living the last time you had contact with them. It will expect you to contact the U.S. Postal Service for the forwarding address of the person. It will expect you to contact the person’s last known place of employment, and relatives and friends.

If you have contacted all of these people and agencies and still cannot find the person to serve them with copies of the court papers, you have to let the court know this. You do this by filling out and filing a "Declaration of Due Diligence."

Some courts have local "Declaration of Due Diligence" forms that you can use to let the court know what you have done to contact each person. If you live in Contra Costa County, CA, you can use the local form: Declaration Regarding Notice (Form GC-02).

If your court does not have a local form, you could use the general:

AFTER YOU HAVE WRITTEN EVERYTHING YOU WANT TO SAY….

File the "Declaration" (with the "Proof of Service" forms that were filled out for the relatives you could find) at the court clerk’s office.

In most cases, you have to pay a fee to file papers with the court.

If a person can’t afford the court’s filing fees, there are forms he or she may file asking permission to not pay all or some of the court fees and costs. This is called getting the fees “waived,” and fee waiver packets are available at the courthouse for free, or can be downloaded from this site.

Eligibility for the fee waiver is based upon the person’s household income or if he or she is receiving public assistance. If a person files a fee waiver but is found not to be qualified, he or she must pay the appropriate filing fees.

To see if you qualify for a fee waiver, read:

  • Information Sheet on Waiver of Court Fees and Costs (Form FW-001-INFO)

If you qualify for a fee waiver, select the forms you need.

California Rules of Court, Rule 1.100 allows lawyers, parties, witnesses, jurors, or other people with a disability to make confidential requests for accommodations from the court.

If you have a disability (as defined by the Americans with Disability Act) and would like to request an accommodation, you may fill out a:

  • Request for Accommodations by Persons With Disabilities and Response (Form MC-410)
    See the instructions for this form.
  • You can also make a request for an accommodation by writing a short letter to the court OR
  • You can go to the court, ask a clerk for the form, fill it out, and return it to the clerk that same day.

Requests can be made at any time, although you should give the court at least 5 court days’ notice if possible.

Usually, the child lives with the guardian.

What if the guardian moves within California?

  • If the guardian moves to another place in California, he or she should give the Court the new address and phone number right away.
  • Even if the guardian moves to a different place in the same county, he or she should give the Court the new address and phone number right away by filling out a:
  • Change of Residence Notice (Form GC-080)

What if the guardian wants to move with the child out of California?

  • The guardian is to get permission from the Court before moving the child out of the state of California.
  • If the court agrees to allow the guardian and the child to move to another state, the guardian is to establish guardianship in the new state by filling out a:
  • Petition to Fix Residence Outside of the State of California (Form GC-085) AND
  • Order Fixing Residence Outside of the State of California (Form GC-090)

What if the child wants a driver's license?

The guardian may give the child permission to apply for a driver's license. Or, the guardian may choose to not give his or her permission.

  • If the guardian lets the child get a license, he or she must also get auto insurance for the child.
  • If the child has an accident while driving, the guardian may be responsible for any damages caused by the accident.

What if the child wants to enlist in the military?

The guardian may give the child permission to enlist in the military.

  • If the child enters into active duty with the armed forces, the guardianship will end. California law will consider the child to be an adult (emancipated).

What if the child wants to get married?

Both the guardian and the Court must give permission for the child to get married.

  • If the child gets married, the guardianship will end. California law will consider the child to be an adult (emancipated).

Normally, a guardianship will last until one of these things happens:

  • The child turns 18 years of age;
  • The child is adopted, gets married, or joins the military;
  • The court ends the guardianship;
  • A different person (successor guardian) is appointed guardian; or
  • The child dies.

A guardianship takes away the parents' right to make decisions about their child's life. However, it does not permanently terminate parental rights. This means that although the guardian now has custody and is responsible for raising the child, the parents are still the child's legal parents.

The parents may be able to visit and see their child, but when and how often is up to the guardian (or the court) to decide. They may, in some cases, regain custody of their child in the future if the court determines the guardianship is no longer in their child's best interests.

Visitation is NOT automatically discussed in a guardianship proceeding -- it is up to one of the people involved in the case to raise the issue.

  • The court's focus is on the best interests of the child. It will honor the child's right to have visitation with a grandparent or other relative.

For the Parents:

Before the hearing, it would be good if the potential guardian and each parent tried to reach an informal agreement about a visitation schedule for the parent and the child. If this doesn't work out, at the first hearing on the guardianship each parent may tell the judge that he or she would like to be able to visit with the child.

The probate court can order a guardian to let the parents visit or contact the child, but the court may also put limits or other conditions on the visitation, such as requiring that any visitation be supervised.

The court may decide when, where, how often, and under what conditions the parent may visit the child - based on what it finds would be in the best interests of the child.

  • It is important to note that court-ordered visitation may not interfere with or undermine the guardianship.
  • If the parent is in jail, there may be special programs or community organizations (such as Friends Outside) which may be able to assist in arranging the visits.

For Grandparents:

In general, grandparents in California do not have a legal right to visit a child who is living with a guardian.

If the grandparents would like to visit the child and the guardian does not want to allow this, the grandparents could ask the guardian to attend mediation to try to work out an agreement.

It is also possible to take the issue to court.

Get more information about guardianship cases in your county.

The parent must continue to support their child financially during the guardianship. Additionally, they may be ordered to pay child support to the guardian. The child can still inherit money or get social security benefits from the parents.

The guardian of the child may quality for financial assistance for the child. These benefits may be available based on the financial situation of the child and the child's parents, even if the guardian's personal financial situation would not qualify him or her for government assistance.