In a guardianship trial, the requested guardians do not have to prove to the court that a parent is unfit in order to get permanent guardianship of the children. It is important for you to prove that you are a fit parent, but another issue that the court bases its decision on is would it be detrimental to the children to remove them from the guardians that currently have temporary guardianship.

In Guardianship of Zachary H, 73 Cal. App. 4^th 51 the court considers both Family Code Section 3040 and Family Code Section 3041 in rendering its decision.Family Code Section 3040 provides in part:…(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3012: (1) to both parents jointly… (2) if to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.” Family Code Section 3041 states in part “Before making an order granting custody to a person or persons other than a parent, without the consent of the parents, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the non-parent is required to serve in the best interests of the child.” Id. at 62. In Guardianship of Zachary H, the court held that it would be detrimental if Zachary was removed from his current home and placed with his father. The court considered that the fact that the father did not actively pursue custody of his son until he discovered that the mother intended to put his son up for adoption. Id. at 56.

Since it is not a guarantee that you will get custody of your children in a guardianship, and there is case law on this specific issue, it is important to take the guardianship trial seriously and seek a knowledgeable guardianship attorney. Wallin & Klarich has more than 30 years of experience in family law. Our attorneys know from long experience in guardianship cases, and are prepared to fight to get you the best possible outcome. With 16 attorneys in 33 offices throughout Southern California, we can be there when you need us – wherever you are. If you’re thinking of hiring an attorney for a guardianship matter, call us today at 1-888-749-7428 for a consultation.