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Guardianships

Establishing a Guardianship in California

A guardianship is an action filed in probate court giving an adult control of a child under the age of eighteen years old) who is not their own. There are two types of guardianships: over the person and over the estate. The most common type of guardianship established in the state of California is a guardianship over the person. 

Guardianship of the person:  A guardianship of the person is generally granted when neither natural parent of the child is not available, for whatever reason, to have custody of the child. A guardianship of the person is most likely to be granted when a natural parent nominates the guardian, or the parent is unable to care for the child due to neglect, abuse or abandonment. If the court deems that a guardianship is necessary and determines who is the best person to raise the child, it will then establish a guardianship that will last until the child reaches the age of eighteen years. In order to obtain custody through a guardianship action, you must show that the children are better off with you, submit to a criminal background check, and submit to an inspection of your home with the child present. A social worker will then write a report and submit it to the court, either advising that the guardianship be established or denied. Once the guardian obtains custody, the guardian will then have all the powers and all the obligations toward the child as if the child was his/her own biological child. It will be up to you to ensure the children's health, welfare, and safety needs are met. This includes making all educational and medical decisions for the child; providing the child with food, shelter and clothing; and stepping into the shoes of a parent.

Guardianship of the estate: A guardianship of the estate when there is no parent available to care for the child's separate estate. The person appointed becomes responsible for managing all of the child's assets. This requires that all monies of the child be kept separate from the guardian's, that the guardian account to the child and to the court as to the location of the monies, and that the money be safeguarded so that the assets remain intact to return to the child at the appropriate age.

HOW A GUARDIANSHIP IS ESTABLISHED

A guardianship action requires the requesting party to file a lawsuit, beginning with a pleading called a Petition to Establish Guardianship. The person filing the action is the "Petitioner." The Petitioner must allege the facts which require the establishment of a guardianship. The most common reason a guardianship is establised is for abandonment by the parents. The second most common reason is that the parents are simply unable to care for their child. Sometimes, the child has lived in the home of someone other than the natural parents for so long that removal of the child from that home would be detrimental to the child.

Upon the filing of a guardianship, the court will order the investigation of the proposed guardian's home and an interview with the child. The report is then written and given to the court to help it determine what custody orders it should make.

FREQUENTLY ASKED QUESTIONS- GUARDIANSHIP

QUESTION: My sister always had sole custody of her daughters. She does not know where their father is.  My sister is in the hospital with a prolonged illness. She wants me to have custody of them while she is ill. Is it possible for me to get guardianship of my neices?

ANSWER: Your sister can nominate you as a guardian of the children. Given the fact that the children's father is not a part of their lives, it is likely you will get guardianship. Once your sister recovers, you can dissolve the guardianship and return custody to her.

QUESTION: My son has a two year old daughter. He lives a few blocks from me and has sole legal custody of her. The mother of the baby has a history of drug use, including two felony drug convictions. She was arrested last week on a DUI and may be going back to prison. My son also has a drug problem, but has no criminal convictions.  Although my son has custody of our granddaughter, she really lives with me and my husband (her grandparents). I believe my granddaughter would be better off living with us. Is there any way I could get custody?

ANSWER: A guardianship is designed to give you power of a parent when both children are unavailable. Given that neither parent is fit, and you have provided the child with the only stability she knows, you should be able to obtain guardianship.

Family Attorneys serving the Temecula, Murrieta, and Hemet areas of Riverside County, California, including Menifee, Wildomar, Winchester, Canyon Lake, and Lake Elsinore. Our practice is limited to family law, including issues involving divorce, paternity, legal separation, annulment, child custody and visitation, child support, spousal support, attorney fees, post-judgment modifications, division of property, and domestic violence.


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