When the parents of a minor have died, or they are unable or unfit to provide a suitable home for the child and/or protect the child or their finances, it is likely a legal guardian will need to be appointed to care for the child until they turn 18.
A guardian is granted full legal custody of the child and essentially has the same responsibilities as those of a parent in regard to the physical care of the child. If a child has received a sizable inheritance or earns substantial income, a guardianship can also be obtained to enable a responsible adult to manage the child’s finances.
Parents often nominate a guardian through their will, but any responsible adult can seek guardianship of a child. It is possible to seek guardianship of a sibling as well, so long as the petitioner is 18 years or older. If the circumstances call for it, the court can also appoint a guardian of its choosing.
The attorneys at Keystone Law Group understand the complexities surrounding the establishment of guardianship and are well-equipped to assist adults seeking guardianship over a minor or guardians seeking counseling about their duties.
It can be complicated to establish a guardianship in California. Before filing a petition to become a child’s guardian, there are some things you must consider, including:
Our skilled team of guardianship attorneys will review the specifics of your case to help you determine the answers to these questions, including whether a guardianship is the best choice for both you and the child. Contact us to schedule your free consultation today.
A guardianship is a legal arrangement in which an adult assumes responsibility for the care and custody of a minor.
There are two types of guardianships in California:
There are several grounds on which a guardianship can be established in California, including:
Because of the emotional distress children may suffer as a result of being separated from their parents, the court will only grant a guardianship if the petitioner can demonstrate that there are no other viable options and that the guardianship would be in the best interest of the child. If the child’s parents are alive and able to adequately care for the child, the court will almost always default to the child remaining with their parents.
It is important to point out that if a guardianship is granted by the court, parents will retain their parental rights over the child, including the right to communicate with their child and occasionally visit with them, so long as doing so would not negatively impact them.
Guardianships can be beneficial arrangements for all the parties involved when they are genuinely needed and the guardian is well-suited to care for the child. However, there is also potential for financial exploitation or other types of misconduct within a guardianship.
With an experienced Keystone guardianship lawyer on your side to help you navigate the process, you can rest assured that any legal action that is taken will be in the child’s best interests. Your attorney will go over the rights and responsibilities of a guardian to help you decide whether you are willing and able to step into the role. If you decide to move forward with your case, your lawyer will not only help you obtain a guardianship, but also provide counsel as needed while you carry out your responsibilities and make decisions on behalf of the child.
The consequences of not fulfilling your responsibilities to the child or acting against the child’s best interests can be devastating for both you and the child, so it is best to have an experienced guardianship attorney in your corner to guide you. A lawyer can also assist with bringing a claim against a guardian who is acting improperly or failing to consider what is best for the child.
Because the court has to be sure that a guardianship is legitimately needed and that the proposed guardian is the right choice before making its decision, establishing a guardianship in California can be a long and complicated process.
To become a child’s guardian, you must take these preliminary steps:
This process can be taxing for everyone involved, which is why legal representation can be of invaluable help. Not only can your lawyer expedite the guardianship process, but they can effectively present the facts of your case to the court, increasing the likelihood of the proposed guardianship being granted.
Anyone who is opposed to a guardianship can file a formal objection with the court that details why the proposed guardianship is not in the child’s best interest and/or why the proposed guardian is not a good fit. An adult other than you must serve a copy of your objection to the proposed guardian.
You might object to the guardianship of a minor for the following reasons:
If an already established guardianship is being challenged, it will be up to the claimant to prove to the court why the guardian needs to be replaced or why the guardianship is not needed. Conversely, if a person is petitioning to be appointed a child’s guardian, the burden of proof will rest on the petitioner, as they will have to provide evidence for why a guardianship is in the child’s best interest and why they are the best choice for guardian.
At the conclusion of a disputed guardianship proceeding, the court will decide whether to grant the proposed guardianship, appoint someone other than the proposed guardian to the role, or deny the guardianship altogether. If the proceeding relates to a guardianship that is already in place, the court may order for the guardianship to continue, for the appointed guardian to be removed and replaced, or for the guardianship to be terminated. An experienced guardianship attorney can help you understand the ins and outs of objecting to a guardianship and litigate on your behalf to help you secure the outcome you want.
A guardian can be removed or replaced for various reasons, including misconduct, abuse, neglect or simply not acting in the child’s best interests. If you are seeking to remove and replace a guardian, or if you are a guardian seeking to defend misconduct claims being brought against you, a skilled attorney for legal guardianship can help you achieve your desired outcome. Similarly, if you are a guardian who wishes to resign, an attorney can help you do so responsibly to ensure the child’s care is not compromised during the transition.
There may come a time when a guardianship is no longer needed to protect the child and can therefore be terminated. Guardianships sometimes terminate automatically; however, some situations require for a petition to be filed with the court.
Reasons why a guardianship could be terminated include:
From the above list, solely the last bullet requires a court hearing to end the guardianship, but it’s important to keep in mind that only the child (if they 12 or older), their parents or the guardian can file a petition to terminate the guardianship. A reliable guardianship attorney can help you file the necessary paperwork and argue your case in court.
While it is not required for guardians to be related to the child, placing the child in the home of relatives they know and trust can make for a smoother transition. On the other hand, relatives may not have the capacity to care for their minor family member but just want to ensure the child is placed in a good home with responsible guardians. Our attorneys can help a child’s family establish a guardianship or protect the interests of their vulnerable loved one should someone else request to be their guardian.
Establishing a guardianship is no easy task, but our lawyers have an excellent track record of helping adults seeking guardianship over minors achieve their desired outcomes. Once you’re appointed guardian, our attorneys can help you understand your rights and responsibilities, as well as protect you against liabilities when important decisions need to be made on behalf of the child. Lastly, Keystone is well-equipped to defend you should someone bring a claim against you or object to your guardianship petition.
It is never easy for a parent to send their child to live with someone else; nevertheless, many parents will petition for a guardianship or consent to a proposed guardianship if they believe they are unfit to care for their child or feel they would be better off in the home of another adult. Sometimes, a parent is incarcerated, in rehab or reporting for military duty, and they have no choice but to temporarily leave the child under someone else’s care. Other times, one parent has died, and the child has received a sizable inheritance, so the surviving parent needs to become their guardian of the estate to manage their money for them until they turn 18. As previously noted, guardianships can be terminated if there is no longer a need for them. Our attorneys can represent parents in guardianship proceedings, regardless of whether they are seeking to establish a guardianship, terminate to a guardianship or object to a proposed guardianship.
Keystone works exclusively in the area of probate law. We possess the knowledge and expertise to effectively serve you in most types of guardianship matters. Our firm is proud of its team members, many of whom have earned numerous accolades and accomplishments in the probate field of law, including:
Recognition in professional publications, including Daily Journal, Best Lawyers® and Super Lawyers
We are a California guardianship practice. We regularly serve:
There are several important distinctions to make between guardianships and adoptions.
First, a guardianship is temporary, whereas an adoption is permanent. A guardianship automatically terminates when a child turns 18, or it can be terminated by the court prior to that age upon petition. An adoption, on the other hand, is designed to last for the lifetime of the adoptee.
Second, in a guardianship, the guardians are not considered the parents of the child, and the parents retain some of their parental rights. In an adoption, the parents lose all their parental rights. This means that the child is no longer considered their child from a legal standpoint. In terms of inheritances, children under guardianships are not entitled to an inheritance from their guardians, but children who have been adopted have the same inheritance rights as biological children.
Lastly, with a guardianship, the consent of the parents is not required, but in an adoption, the biological parents, if alive, will generally have to consent to the arrangement, unless one or both parents’ parental rights have previously been terminated by court order.
Yes. California law allows parents to nominate a guardian for their minor children to take over their care in the event of their death or incapacitation; however, it’s important to note that a parent is entitled to nominate a guardian for their child even if they are not dying or incapacitated. This nomination must be made in writing and can be done via a will or separate document signed by both parents.
If you wish to relocate with the child to a location outside California, you must first obtain permission from the court. You will need to file a petition and notify all interested parties, which could include the child’s parents, grandparents and any other people who have a significant relationship with the child.
Before you can officially move, a hearing will be held to determine whether it is in the child’s best interests to relocate.
As a guardian, your responsibilities will include, but are not limited to:
Read more about guardianship responsibilities.