California Guardianship FAQs (Probate Code 1500 – 1517)
How is a guardianship different from an adoption?
There are many differences. First, with an adoption, the legal relationship between the child and his or her birth parents is permanently terminated. Thus, the birth parents lose all parental rights to the child and the court may never terminate the adoption. The adoption establishes a legal relationship between the child and his or her adoptive parents. This includes the child’s right to inherit from his or her adoptive parents. A child may never inherit from his or her guardian.
With a guardianship, the birth parents still maintain their parental rights to the child. Thus, the parents may ask the court for reasonable contact with the child. In addition, when the parents are willing and able to care for the child, the court may terminate the guardianship if it is in the best interest of the child. The guardian is appointed by the court and is always supervised by the court. Adoptive parents are never supervised by the court.
If I am dying, can I name a guardian for my children?
You may suggest a guardian to the court and the judge will take it into consideration. But the judge will have the final discretion on who the guardian will be. Even if you are named a guardian in a testamentary document, such as a will, the court will only take the nomination into consideration. The court will still look in the best interest of the child.
If you are dying of an incurable disease, you can request the court to appoint a joint guardian for your child. If the court grants the joint guardianship, you and the guardian will act as parents. When you die, the guardian will gain full custody of the child without another guardianship hearing. Remember, to have a joint guardianship approved, you must have legal custody of the child.
What if the parents agree that I can become the guardian? Does that make me the guardian?
No. Parents can sign a notarized agreement giving you custody of the child, in which you have permission to make decisions for the child, such as education and medical needs. However, the parents may cancel this agreement at any time, without notice, and may relinquish your custody of the child even if it is not in the best interest of the child. Thus, it is more beneficial to the child if a guardian is appointed by a court. The court will always look at what is in the best interest of the child.
What if the parents’ whereabouts are unknown? How may I become the child’s guardian?
If you do not know where the parents are to sign a custody agreement, you can file a Caregiver’s Authorization Affidavit (CAA). The CAA must be notarized and the parents do not have to sign. But if the parents reappear, they may cancel the CAA. Under the CAA, the child must remain in California.
The Caregiver Authorization Affidavit does not give you all the rights and responsibilities of a legal guardian. It only allows relatives to enroll the child in school and make medical care decisions. Under the CAA, nonrelatives may only enroll the child in school and make medical care decisions that are school related, such as immunizations and physical exams.
Although a CAA may give you some rights, it is more beneficial for the child if you file for a guardianship.
As a guardian, how can I move outside of California with the child?
You may not move outside of California with the child unless you obtain permission from the court who granted you the guardianship. If the judge agrees to allow you to move outside of California with the child, you must establish a guardianship in the state you move to. Each state has different rules regarding guardianships.
Ventura Guardianship Attorney
The legal process of requesting a guardianship is difficult and complex. If you want to request a guardianship, you need an experienced guardianship attorney from Wallin & Klarich to guide and help you achieve your goal. The skilled guardianship attorneys at Wallin & Klarich have dealt with guardianship cases for over 30 years.
With offices located in Los Angeles, Orange, Riverside, San Bernardino, San Diego, Victorville, West Covina, Sherman Oaks, Torrance and Ventura , there is a Wallin & Klarich attorney available wherever you happen to live. Call us today at (888) 749-7428. We will get through this together.