Having a formal guardianship in place ensures safety and stability for children whose parents are unable or unwilling to act as parents. The fact that relatives, not parents, are raising children has become more common than ever. The best way to legally protect the child’s interests, and help the adults caring for that child, is to formalize the situation by having a guardianship granted by the probate court.
At Fischer & Van Thiel, our experienced attorneys will guide you through the paperwork and legal process to establish guardianship in the best interests of the child and family.
Probate guardianships are brought by someone seeking to be named guardian or a family member requesting the court to appoint a guardian. A probate guardianship of the person is set up because a child is living with an adult who is not the child’s parent and the adult needs a court order to legally make important decisions on behalf of the child.
Guardianship happens when a court orders a non- parent to:
- Have custody of the child, or
- Manage the child’s property (called an “estate”), or
A guardianship is not the same as an adoption. Here are some differences,
- The parents still have parental rights and can request the court grant them reasonable contact with the child,
- The guardianship can be ended if the parents can care for the child, and
- Guardians can be supervised by the court.
- The parents’ rights are permanently ended,
- The legal relationship with the adoptive parents is permanent and the same as a birth family,
- An adopted child inherits from his or her adoptive parents, just as a birth child would, and
- Adoptive families are not supervised by the court.
Two types of probate guardianship
Guardianship of the person
A legal guardian can care for a child when the parents are unable or unwilling to do so. A probate 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.
The guardian has the same responsibilities to care for the child as a parent would. The guardian has full legal and physical custody of the child and can make all the decisions about the physical care of the child that a parent would make. A judge could appoint anyone to be a guardian, a relative, family friend or some other person suitable to raise the child.
The guardian is responsible for the child’s:
- Food, clothing and shelter,
- Safety and protection,
- Physical and emotional growth,
- Medical and dental care,
- Education and any special needs, and
- The guardian is also be responsible for supervision of the child and may be liable for any intentional damage caused by the child.
A lack of love or caring for a child is not always the reason a guardianship of the person may be needed. For whatever reason, one or both parents are not able to parent, because they:
- Have a serious physical or mental illness,
- Are in the military and deployed overseas for an extended period of time,
- Are substance abusers and need to go to a rehab program for a while,
- Need to serve time in jail,
- Have a history of abuse, or
- Cannot take care of their child for some other reason.
Though they no longer have custody of a child, parents may be granted visitation rights. This may be a good option for relatives who want to help the parent get back on their feet but don’t want to care for the child until the age of majority.
This process doesn’t apply if custody of the minor was awarded to a non-parent through the juvenile dependency court. However, a probate guardianship should be considered if a parent is being investigated by child protective services to prevent removal of the child from the parents’ home and the filing of a petition in juvenile dependency court.
Guardianship of the estate
A guardianship of the estate is created to manage a child’s income, money or other property until the child turns 18. This may be needed if he or she inherits money or assets. A guardianship of the estate is not needed if the child has few assets (like toys and clothing) or receives social security benefits or TANF/CalWorks (welfare).
The court normally appoints the surviving parent to be the guardian of the child’s estate. The same person can be the guardian of the person and the estate. The guardian of the estate must manage the child’s money wisely and for the child’s benefit, not for the guardian’s benefit.