Adoption / guardianship
In general, a guardianship of the person should be obtained whenever a child is permanently living with someone other than a parent. Historically, this occurred when both parents died, or when one parent died and the other was absent or unable to care for the child. Unfortunately, in our modern society, most guardianship now occur because both parents are alive but are unable to provide a safe, secure home for the child. Occasionally grandparents will seek guardianship because the children's parents suffer from serious personal problems, including drug abuse and alcoholism.
If a non-parent will care for a child temporarily (for example, if a parent is traveling on business, or has relocated to another city but the child wants to stay behind to finish the current school year), it is not necessary to obtain formal guardianship unless there is a risk that a parent will seek to reclaim custody when this would not be in the child's best interests. In such temporary situations, the caregiver should obtain an affidavit authorizing him or her to care for the child.
A guardianship of the person can be initiated either in the Probate Court or in the Juvenile Court. Normally, a guardianship only starts in the Juvenile Court if a child has been removed from a home due to abuse or neglect, or has been declared a ward of the court. In all other circumstances, a petition for guardianship of the person is filed in the Probate Court. (A single petition for guardianship of the person and estate can be filed if both are required.)
In most counties, a Court Investigator is assigned to evaluate the proposed guardian and make recommendations to the Probate Judge. In some counties, a detailed information sheet must be submitted in advance. The investigator also obtains criminal history reports for the proposed guardian, the parents, the children, and other adults living in the proposed guardian's home.
When a guardian is appointed, the court may impose conditions. One common condition is the requirements that the guardian attend a "parenting class," since older adults often don't recognize that the "rules" for disciplining children have changed. Courts sometimes require that grandparent guardians attend a "grandparent caregiver support group." Support groups can be helpful in sharing experiences and tips for dealing with troublesome family members and the common problems that abandoned, neglected, or abused children experience.
If a guardianship is contested, because the parents or others claim that they should be awarded custody of a child, some courts will transfer the case to another department (such as Family Court) better suited to custody disputes.
Frequently Asked Questions
WHAT IS GUARDIANSHIP?
Typically, guardianship proceedings are brought to authorize a third person's (nonparent's) custody and control of a minor where both parents are dead or missing, or parental custody is detrimental to the child. A guardian of the child appointed without limitation of authority has the power over the child's care, custody and control; in turn, the parents' authority over the child ceases.
WHO MAY FILE A PETITION FOR GUARDIANSHIP?
Any person may file a petition on a minor's behalf for appointment of a guardian of the minor pursuant to California Probate Code § 1510. Thus, a nonparent's status as such does not defeat standing to pursue a custody claim by filing a guardianship petition with the Probate Court. A non-parent petitioner need not allege "serious abuse, neglect or abandonment" by a parent but only that guardianship is "necessary or convenient" (Ca Probate Code § 1514(b)) and that parental custody is detrimental (Ca Family Code § 3041)].
CAN A NON-PARENT TO SEEK ONLY VISITATION RIGHTS WITH A MINOR CHILD USE A GUARDIANSHIP PETITION?
Under existing law, it is not clear whether a guardianship petition is available to a non-parent seeking only visitation rights. One case concludes, "there is no statutory authority for a limited guardianship providing for visitation rights to a non-parent. The issue is one that must be addressed to the Legislature.” [Guardianship of Z.C.W. (1999) 71 Cal.App.4th 524, 527, 84 Cal.Rptr.2d 48] Another case, however, leaves the issue open. This court expressly did not endorse "the use of a petition for guardianship as a forum for a non-parent to obtain visitation rights over the objection of the parent"; but it did not rule out that procedure either. [Guardianship of Olivia J., (2000) 84 Cal.App.4th at 1161, 101 Cal.Rptr.2d at 375 & fn. 11--expressly not reaching issue]
CAN A GUARDIANSHIP BE AWARDED TO A "DE FACTO" OR "PSYCHOLOGICAL" PARENT WHO IS NOT A BIOLOGICAL PARENT?
Yes. "A de facto parent is 'that person who, on a day-to-day basis, assumes the role of parent, seeking to fulfill both the child's physical needs and his psychological need for affection and care.' Letters of guardianship, with specific authority to permit heart catheterization, were issued in favor of non-parents who had formed a relationship with a Downs syndrome minor as daily volunteers at residential facility where he lived, even though the minor had never lived with the non-parents. While courts may appoint guardians for minors where it is "necessary or convenient," a much stronger showing is required to disturb the natural parents' custodial rights. Here record contained abundant evidence that parents' retention of custody would cause emotional harm to child. "[T]he right of parents to retain custody of a child is fundamental and may be disturbed '"... only in extreme cases of persons acting in a fashion incompatible with parenthood."' The Legislature has imposed the stringent requirement that before a court may make an order awarding custody of a child to a non-parent without consent of the parents, 'it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a non-parent is required to serve the best interests of the child.' Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 188 Cal.Rptr. 781
CAN A GAY OR LESBIAN EX LOVER OBTAIN VISITATION RIGHTS THROUGH GUARDIANSHIP?
NO – according to the Court in the recent case of In re Z.C.W. (1999) 71 Cal.App.4th 524, 84 Cal.Rptr.2d 48, U.S. cert. den. 528 U.S. 1056. The Court said that a Lesbian ex-lover, no longer the de facto parent of the children, is not entitled to visitation rights over the objections of the biological mother. "A finding that an award of custody to the parents would be detrimental to the child is essential before a court may make an order granting custody to a non-parent. Further, there is no statutory authority for a limited guardianship providing for visitation rights to a non-parent. The Court said the issue is one that must be addressed to the Legislature."
CAN ATTORNEY FEES BE AWARDED IN A GUARDIANSHIP PROCEEDING?
Attorney fees may not be awarded in a guardianship proceeding in the probate court. However, fees may be ordered when the guardianship proceeding is consolidated with an ongoing family law proceeding and the issue in both is custody of the child. Guardianship of Paduano(1989) 215 Cal.App.3d 346, 263 Cal.Rptr. 589
WHAT IS THE BURDEN OF PROOF NEEDED TO TERMINATE A GUARDIANSHIP ALREADY IN EFFECT?
After O.J. Simpson was jailed on the charge of murdering the mother of his children, a guardianship was established for the children with their maternal grandparents. After his acquittal in the criminal trial, O.J. Simpson requested a termination of the guardianship. The Court held that the burden of proof in a voluntary guardianship termination proceeding is ••not•• placed on the appointed guardians to show detriment by clear and convincing evidence but on parent to show his "overall fitness, " before the Court will terminate the voluntary guardianship of the children. The proper burden, as stated in California Probate Codes §1601, is on the parent to show "overall fitness" on his or her part "sufficient to overcome the inherent trauma of removing a successful caregiver." In re Simpson (1998) 67 Cal.App.4th 914, 79 Cal.Rptr.2d 389.
