When parents are unable to provide their minor child with the stability, care or resources needed for healthy development, another adult can apply for legal guardianship of the child. If granted, the child’s guardian assumes parental responsibilities — either until the child reaches adulthood or until the parents can resume proper care.
Perhaps both parents of a child are deceased or incarcerated.
Perhaps a child’s parent abuses drugs, which exposes the child to a hazardous home environment.
Perhaps a child’s parent is incapacitated due to serious mental illness.
If you’re exploring how to become a legal guardian to support a child in need, your decision is truly admirable. Stepping into this role can profoundly impact not only the child’s life but your own as well.
That said, the legal guardianship process can be complex, and time is often of the essence in these situations. Partnering with an experienced guardianship attorney can help ensure the process moves forward smoothly and efficiently, minimizing delays and protecting the child from further uncertainty or harm.
What Is a Legal Guardian?
A legal guardian is someone appointed by the court to care for the essential daily needs and/or finances of a minor (called the ward).
A guardian who is appointed to have physical custody of a child and oversee their daily needs — such as food, water, shelter, clothing and medically necessary healthcare — is referred to as a guardian of the person.
On the other hand, a guardian who is appointed to oversee a child’s finances is referred to as a guardian of the estate.
It’s important to note that the term legal guardian has different implications in different states. In California, for instance, legal guardians exclusively are appointed to care for minors; however, in other states, legal guardians may be appointed to care for incapacitated adults. It’s crucial to check the laws on guardianship in your state to ensure you are applying for the correct legal arrangement.
Who Can Be a Legal Guardian?
Many people are surprised to discover that any responsible adult can become a child’s legal guardian; it is not required that they be related to the child. That having been said, the court does generally prefer granting guardianship to relatives of the child instead of outside parties — especially if that’s what would be in the child’s best interest.
Legal Guardian Requirements
To become a legal guardian, the main requirement is that the petitioner be at least 18 years of age and capable of providing a nurturing and stable home environment. Additionally, the court may consider other factors, such as:
- Does the petitioner have a history of abuse?
- Does the petitioner have a criminal record?
- Does the petitioner have the financial and physical means to adequately care for the child?
- Does the petitioner have sufficient time and flexibility to meet the child’s needs?
- Who does the minor want as their legal guardian?
To become legal guardian, you generally will need to submit to an investigation and background check. This is to help the court assess whether you’re a good fit for the role.
How to Get Guardianship
Gaining legal guardianship of a child can be straightforward or complicated — much depends on how many individuals are seeking guardianship and on whether the guardianship is being contested. Regardless of how complex the situation is, having an experienced attorney on your side can make the process smoother and more efficient.
How Long Does It Take to Get Guardianship?
The process of obtaining guardianship typically takes at least two months from the time you file your petition to the date of the guardianship hearing — at which time the judge will usually decide whether to approve the proposed guardianship.
Keep in mind that the timeframe for getting temporary guardianship may be shorter, since this guardianship type is usually reserved for emergency situations.
The Legal Guardianship Process Explained
Although the legal guardianship process can be challenging to navigate, understanding what each step entails — and what to expect — can go a long way in streamlining it.
In the sections below, we’ll walk you through each step for obtaining legal guardianship of a child.
Assess the Situation
It is important to thoroughly understand a child’s specific situation before filing a petition for guardianship.
For example, ask yourself what has led you to believe the child needs a legal guardian. Are the parents absent from the child’s life? Is the child living in an unsafe environment? Do they seem physically or emotionally unhealthy? Would the guardianship you’re proposing require the child to uproot their life?
In short, consider whether the child genuinely needs a guardian and, if they do, whether you would be the ideal candidate to fill such a role.
It’s important to remember that the court generally prefers to keep children with their biological parents unless there is reason to believe the child could be harmed by remaining in their current living situation. As such, isolated incidents of parental negligence or misconduct don’t usually qualify a child for guardianship.
Apply for Legal Guardianship
If you’ve confirmed that a child is in genuine need of guardianship, the next step is filing a guardianship petition with help from your attorney.
In your guardianship petition, you will want to clearly describe your reasons for requesting guardianship over the minor in question, as well as provide evidence to support your claims. Be sure to make copies of your petition before delivering it to the courthouse nearest to where the child resides.
Keep in mind that not all courthouses handle guardianship cases, so it’s a good idea to check the website of the courthouse you plan to visit beforehand to confirm whether it has jurisdiction over such matters.
The documents you will need to complete to become a legal guardian in California include:
Remember to make at least three copies of each completed guardianship form. While some of these forms will be filed with the courthouse, you’ll want to keep some copies on file for yourself.
Notify Interested Parties
Once you’ve submitted the necessary guardianship forms to the court, the next step is to notify interested parties of your proposed guardianship. It’s crucial that an adult other than you serve notices, which they can do by hand-delivering the documents or mailing them. If you are working with an attorney, this is something their firm can likely handle on your behalf.
The individuals who must be notified in guardianship proceedings are named in California Probate Code section 1511. They include:
- The proposed ward (if they’re 12 years of age or older)
- The parents of the proposed ward
- The adult(s) with custody of the proposed ward
- The current guardian of the proposed ward (if applicable)
Other individuals and organizations who are not on this list may need to be informed as well, depending on the minor’s specific circumstances. Working with an attorney to complete this step can help ensure timely and proper delivery of notices to all the parties that are entitled to them.
Keep in mind that notices — especially to the ward and their parents — must be served at least 15 days prior to the date of the guardianship hearing.
Undergo Investigation
Once the legal guardianship process is underway, the court will typically send a court investigator or someone from Child Protective Services or Social Services to conduct a thorough investigation of you and your home.
The purpose of the investigation is to confirm your living conditions are suitable. The investigator will then use the information they gather to compile a comprehensive report for the judge to review.
The investigator may do the following during their home visit:
- Assess where the child will be attending school
- Conduct interviews with the you and other members of your family
- Determine whether your home is safe place for a child to live
If still living, the child’s parents may be interviewed as part of the court’s investigation. In some instances, the child may be asked about their feelings surrounding the proposed guardianship as well.
This investigation should be taken seriously, as it’s an integral step on the path to gaining guardianship of a child.
Attend Guardianship Hearing
Having an experienced guardianship attorney in your corner at the guardianship hearing will prove particularly useful. An attorney is comfortable in the courtroom and can clearly and convincingly present your case, which can make a world of difference in securing the outcome you desire.
The judge may ask you questions to gauge your qualifications for becoming a legal guardian. They may ask why you want guardianship and how you plan to care for the child with your existing obligations. This is to determine whether the guardianship you’re proposing is in the best interest of the child.
Administer Guardianship
If you’ve made it to this step, your guardianship petition likely was granted, and you are now a child’s legal guardian.
As a child’s guardian, you become responsible for their general welfare, which may feel overwhelming at first. Fortunately, if you have an attorney, they can provide you with guidance throughout the guardianship and help you navigate any challenges that arise.
As a legal guardian, you must meet all the child’s needs in the same way a parent would. It’s vital you take time to understand your guardianship responsibilities and how best to fulfill them.
FAQs on How to Become a Legal Guardian
The following frequently asked questions shed more light on the legal guardianship process. If you require personalized guidance, don’t hesitate to reach out to our firm.
The guardianship process is the same regardless of the type of guardianship you’re seeking.
The main difference between obtaining a temporary guardianship versus a permanent one has to do with timing. Petitions for temporary guardianship are typically heard on an expedited basis, since they usually involve some level of urgency.
A stepparent can become a legal guardian by petitioning the court for guardianship, demonstrating that it's in the best interest of the child.
The court will consider factors like the biological parents' consent, the stepparent's relationship with the child and the child’s needs.
If guardianship is granted, the stepparent will gain the legal authority to make decisions for the child — similar to that of a parent.
To become the legal guardian of a grandchild, you must file a petition for guardianship with the court. The court will assess whether guardianship is in the child’s best interest, considering factors like parental consent, your capacity to care for the child and the child’s wellbeing.
If the judge approves your petition, you will gain the legal authority to make decisions on behalf of your grandchild.
Remember, the legal guardianship process is the same regardless of who is applying.
You can provide proof of legal guardianship by presenting a certified copy of the court order or guardianship letters issued by the judge. This document officially names you as the child's legal guardian and may be required for educational, medical or legal matters.
When the proposed ward is disabled, it’s likely to make the guardianship process more intensive. There may be concerns about whether the guardian is aware of the child’s special needs and have the necessary experience to properly tend to them.
Furthermore, there may be other people and organizations involved, such as caretakers or supported living services. A ward’s circumstances — especially if they have special needs — are bound to affect the guardian’s financial responsibilities, home environment, daily life and other obligations. It’s important for the guardian to consider such factors before filing for guardianship.
For example, if the ward uses a wheelchair, the guardian’s home may have to be altered to accommodate the equipment.
When the proposed ward is your own sibling, the legal guardianship process may prove easier for you than someone who has no relation whatsoever to the ward.
Presumably, as a sibling of the proposed ward, you already have a relationship with them and are familiar with their needs. This familiarity will be strongly considered by the judge when deciding whether or not to grant guardianship.
Of course, you will still be required to prove your fitness to serve as guardian, but with an attorney by your side, this should not be difficult.
The process for becoming legal guardian of a sibling is no different from the standard guardianship process.
No, it’s not possible to obtain legal guardianship of an 18-year-old in California — that is, unless the young adult in question is seeking special immigrant juvenile status in federal immigration court, which you can read more about here.
If an adult is incapacitated and requires someone to manage their personal or financial affairs, a legal arrangement known as a conservatorship must be sought.
Although adoption is often confused with guardianship, there are important differences between the two types of legal arrangements to be aware of.
Five key differences that separate adoption and guardianship are:
- While parents typically must consent to an adoption, a guardianship can be granted without their consent.
- An adoption is permanent, whereas a guardianship ends when the ward turns 18 years old.
- A legal guardian is not considered a parent of the child they care for, but an adoptive parent is.
- An adoptive child can inherit from their adoptive parents as an heir, whereas a ward has no parent-child relationship with their legal guardian. Therefore, they would not be entitled to inherit from them unless they were expressly named in their estate planning documents.
- When a child is adopted, the familial relationship between the child and their biological parents is severed. When a child is under guardianship, the familial relationship with their biological parents is maintained (assuming they are still living).
If you are unsure whether to seek an adoption or guardianship, your best bet is to speak with a probate lawyer about the implications of both options.
No, you cannot obtain legal guardianship of a parent in California; instead, you must get a conservatorship. While some states allow guardianship for incapacitated adults, California reserves guardianships for minors and uses conservatorships for adults who can no longer manage their personal or financial affairs.
Keep in mind that courts do not grant conservatorship lightly, as it removes fundamental rights from the conservatee. You will typically need strong evidence — such as medical documentation and possibly even testimony from your parent’s treating physician — to prove your parent lacks capacity before the court will consider approving your petition.
If an adult is incapacitated and requires someone to manage their personal or financial affairs, a legal arrangement known as a conservatorship must be sought.
To obtain emergency guardianship, you would follow the standard guardianship process, which is initiated by the filing of a guardianship petition with the court.
Due to the urgent nature of an emergency guardianship, it’s crucial you specify in your petition why the proposed ward is at risk of immediate harm if not placed under guardianship.
Keep in mind that emergency guardianship is the same as temporary guardianship.
Being that a child’s biological parents may be directly affected by a proposed guardianship, they have every right to file a formal objection.
Depending on the specific circumstances of a guardianship case, the parents may have some influence over the decision to appoint you as their child’s legal guardian. For example, if a single mother needs a temporary guardian to care for her kids while she’s on deployment with the military but objects to her sister becoming guardian, her opinion may carry weight with the judge.
That said, whether to appoint a guardian — and who that guardian should be — is ultimately a decision that rests with the court. It’s reasonable to expect the biological parents’ opinions to have an impact, but they may not be the deciding factor in whether the proposed guardianship is granted.
In California, a court-appointed guardian may receive compensation that the court deems reasonable, based on factors such as the size of the ward's estate (if they have one), the benefit of the guardian's services to the ward, the necessity and complexity of those services, and the time and skill required to complete them.
In short, there is no fixed rate; instead, the court evaluates each case individually. Guardians must petition the court for approval of their fees, and any compensation awarded is typically paid from the ward's estate.
Still have questions on how to become legal guardian of a child?
A guardianship attorney can take the stress out of your case by guiding you through every step of the legal guardianship process. With specialized knowledge of legal guardian laws, our skilled attorneys can help you determine the best path forward, maximizing your chances of obtaining guardianship of the child in your life.
Contact Keystone today to learn more about our guardianship services.
