As is pertains to guardianship of minor children in California, a guardian is someone other than the biological parents who is given legal custody of the child when the parents are unable to care for them due to:
Military duty abroad;
Profound financial issues;
Any other circumstance that renders the parents unfit or unable to care for their children.
Giving legal custody of a child to someone other than their biological parents is something that the court weighs heavily. Regardless of whether guardianship is being requested by a close family member, such as a grandparent, aunt, or uncle, whose love for the child has been clearly demonstrated, the requesting party will be required to prove by clear and convincing evidence that the appointment of guardianship is in the child’s best interest. Simply disapproving of the fashion in which a parent is raising their child is not an acceptable reason for the court to take custody of the child away from their natural parents. (See California Family Code 3041).
Guardianship vs. Adoption in California
A guardianship differs from an adoption in that in guardianship, parents retain their parental rights and may be awarded visitation of their child during the period of guardianship. In addition, a guardianship may be supervised by the court and, perhaps and most importantly, may be terminated if and when the parent’s circumstances improve. In fact, California courts favor reunification of the child with his or her natural parents if the parents are able to show that they are making progress towards having a stable home life that is fit for a child to be raised within.
On the other hand, in the case of an adoption, a parent’s parental rights are terminated forever and they have no right for visitation or any other type of relationship with their child. Furthermore, unlike a guardianship, the California courts offer parents no option to attain the rights they have lost back, if and when the parent’s become stable. Finally, adoptive families are not supervised by the court.
Since a guardianship is a legal relationship, only a court can officially appoint a guardian. This can happen in one of two ways:
Through the juvenile dependency court, often involving Child Protective Services (CPS); or
As a result of a petition filed by a family member, friend, foster parent, or any other non-parent who is seeking to be appointed a guardian. These are referred to as probate guardianships.
The rest of this article pertains to probate guardianship of minor children in California, specifically.
Types of Probate Guardianships
Generally, probate guardianships are for children under the age of 18 and are often for a temporary period of time, such as when a child’s parents are hospitalized or arrested, or when some other situation arises where the parents cannot care for the child for a sustained period of time.
During these periods, a person other than a child’s parent may be appointed to be their guardian in order to:
Have physical and legal custody of the child (Guardianship of the Person); and/or
Manage the child’s estate i.e. their money and property (Guardianship of the Estate)
Guardianship of The Person in California
As it relates to guardianship of minor children in California, guardianship of the person, means that the court will give legal and physical custody of the child to the guardian, who may be a family member or anyone else who is concerned for the child’s well-being and who is capable of properly caring for the child’s needs.
The guardian will then be responsible for the child’s physical and emotional well-being. This includes providing them with clothing, housing, safety, education, medical care, dental care, etc. In other words, everything the biological parents would morally and legally be accountable for.
A guardianship of the person is appropriate (regardless of how much the parents love the children) whenever the children are not being properly cared for by their parents and/or are in danger of suffering some type of harm.
For example, when the child is being reared in an unsafe environment, or if they are being exposed to drug abuse, alcohol abuse, or domestic violence. A guardian may then be appointed to provide a safe, stable and loving environment for the child and to act in their best interest.
Guardianship of The Estate in California
A guardianship of the estate may be appointed to someone so that they can manage minor child’s money, property or finances until he or she reaches 18 years of age. This is often the case when a child has inherited a substantial amount of money or property.
In these cases, the court will typically appoint a surviving parent as guardian of the child’s estate to carefully manage the child’s money, investments, and property. Often, the same person who has been appointed guardian of the child’s person will also be appointed the guardian of his or her estate.