Guardianship is a court proceeding in which a judge gives someone who is not the parent:
custody of a child, or
the power to manage the child's property (called "estate"), or
The information in this section is about Probate Guardianships. But, if Child Protective Services (CPS) is involved in your case, you probably have to go to the juvenile court to find out what you can do.
What can the juvenile court do?
The juvenile court can make orders in delinquency and dependency cases. For example, these orders can:
Take children from their homes;
Send children to live with relatives or in foster care or group homes;
Cancel a parent's rights;
Create new parental rights;
Work with other agencies to get the services the child needs; or
Send delinquent children to a locked facility, like a detention hall, a ranch, or the Department of Corrections and Rehabilitation, Division of Juvenile Justice.
If the court takes a child from their home, a government agency is responsible for the child. The agency is in charge of the child's health, education, and care. The court can also order the agency to assist the parents in making their home safe for the child.
What is Probate Guardianship?
Probate Guardianship of the Person is set up because a child is living with an adult who is not a parent, and the adult needs the legal right to make decisions on behalf of the child.
There are two types of Probate Guardianship:
Guardianship of the Person which means the guardian has custody of the child.
Guardianship of the estate which means the guardian manages the child's income, money or other property until the child turns 18.
What does a Guardian of the Person do?
For the most part, the guardian has the same responsibilities as a parent. That means the guardian has full legal and physical custody of the child.
The guardian is responsible for the child's care, including the child's:
Food, clothing and shelter
Safety and protection
Physical and emotional growth
Medical and dental care
Education and any special needs
What is a Guardianship of the Estate?
A guardianship of the estate is set up to manage a child's income, money, or other property until the child turns 18. A child may need a guardian of the estate if s/he inherits money or assets. In most cases, the court appoints the surviving parent to be the guardian of the child's estate.
In some cases the same person can be the guardian of the person and of the estate. In other cases, the court will appoint two different people.
Why would a child need a guardian?
Sometimes, no matter how much parents love their child, they aren't able to take care of their child. Maybe one or both parents:
have a serious physical illness,
are in the military and have to go overseas,
have to go to a rehab program for a while,
are going to jail for a while,
have a drug or alcohol abuse problem,
have a history of abuse, or
can't take care of their child for some other reason.
The court will look at what is in the best interest of the child to make sure the child is raised in a safe, stable and loving environment. A legal guardian can care for a child when the parents aren't able to. Relatives, friends of the family, or other people can ask to be legal guardians.
Can I name a guardian for my children?
Yes. You can write a letter naming a guardian for your children and keep it with your important papers or write in your Will who you want to be the guardian of your children when you pass away.
But if both parents are dead, the court will decide who the guardian is. The court will try to appoint the person you wanted. But, the court will also consider what is best for your child and will ask the child what she wants.
Can I ask for a guardian for my child if I'm dying?
If you have an incurable illness, you can ask the court to appoint a joint guardian for your children. (You must have legal custody of the children to do this.) This can make the transition easier when the parent dies. It gives the sick parent the comfort of knowing their child will be safe with the guardian they chose.
If the court approves the Joint Guardianship, both you and the guardian will act as parents while you are alive. And, when you die, the joint guardian will have full custody of the child without another guardianship hearing.
Is Guardianship the Same as Adoption?
No. Listed below are some differences between Guardianship and Adoption:
In a Guardianship:
Parents still have parental rights. They can have reasonable contact with the child.
The Court can end a guardianship if the parents become able to take care of the child.
Guardians can be supervised by the court.
In an Adoption:
The parents' rights are permanently ended.
The legal relationship with the adopted parents is permanent and is exactly the same as a birth family.
An adopted child inherits from his or her adoptive parent(s), just as a birth child would.
Adoptive families are not supervised by the court.
Fishel & Fishel, Attorneys at Law is a Law firm serving the Contra Costa County are including the Northern California East Bay communities of Alameda, Albany, Antioch, Benicia, Berkeley, Brentwood, Byron, Castro valley, Claremont, Concord, Danville, Dublin, El Cerrito, El Sobrante, Emeryville, Fairfield, Fremont, Hayward, Hercules, Lafayette, Livermore, Martinez, Montclair, Moraga, Oakland, Oakley, Orinda, Piedmont, Pinole, Pittsburg, Pleasant Hill, Pleasanton, Point Richmond, San Leandro, San Pablo, San Ramon, Union City, Vacaville, Vallejo, Walnut Creek. We have over 18 years experience in the practice of Family Law covering Child Custody, Juvenile Law, Divorce, Dissolution, Personal Injury, Criminal Defense.