Guardianship Of A Child

Other California Services

What Is A Guardianship

A court ordered guardianship is simply legal recognition that an adult has responsibility for taking care of a minor child. It may be easier to think of a guardianship as legal custody. Until fairly recently, court ordered guardianships were few and far between. Parents were essentially the 'natural' guardians of their children. Court intervention into the responsibility for raising children was seldom required. Then - the world changed.

Drugs, and the devastation left in their wake, have essentially "orphaned" more children than any evil known to mankind, short of war. Many recent studies have found that fully 20% of American children are now being raised by someone other than a parent - that's 1 of every 5 children. You only have to take note of the people, (and their age), who are dropping off and picking up children every day at any school in the United States to understand the sobering reality of that statistic.

It is no coincidence that court ordered guardianships/custody have sky rocketed paralleling the use of drugs in the United States over the last 20 years.

California recognizes two types of guardianships: guardianship of the person and guardianship of the child's estate (i.e. property, stocks, bonds, money etc.). A guardian of a minor child's person generally may also handle routine small financial matters on behalf of the child; for example; receiving benefits such as welfare, Social Security, or other income of $300 per month or less (unless the agency providing benefits also requires a guardianship of the minor's estate).

Being appointed a child's legal guardian requires filing legal documents with a court, appearing at a court hearing, and appointment as guardian by a judge . Simply having a parents's signed/notarized statement that you have their approval and permission to take care of the child is not the same thing as having legal guardianship of the child.

Many grandparents first become painfully aware of the importance of guardianship/custody when they attempt to enroll a grandchild in school only to be told they can't enroll the child unless they have court papers to prove they are the child's legal guardian. Others are confronted with the requirements of guardianship when they apply for some form of public benefits to help with the additional costs of raising a child particularly if the grandparents are living on a fixed income.

Aside from those guardianships necessitated by drug use; a growing segment of single parents (mothers and fathers) are choosing to enlist in the Armed Services in order to provide a better life for themselves and their children. The military does not allow single parents to enlist unless and until they have been through the system and have a legal guardian appointed to care for their children.

The Basics Of Guardianship In California

The best interest of the child is the primary factor a judge considers when appointing a guardian of a child. Since in most guardianship cases neither parent is capable of caring for the child (otherwise there wouldn't be a need for a guardianship), courts generally have wide discretion in appointing guardians.

In the overwhelming number of guardianships, there is only one person willing and able to assume the role as a child's guardian,(the person seeking court appointment), judges are usually free from having to decide between two "waring" parties and are primarily concerned with the practical considerations of appointing a guardian; i.e. is the person able to fundamentally care for the child?

The following is actually an order of preference for appointing guardians of children as set out in the California Code:

• one or both parents in a sole or joint custody arrangement
• the person with whom the child has been living in a wholesome and stable environment
• any person determined suitable and able to provide adequate and proper care and guidance for the minor.

Procedure For Being Appointed A Guardian

Although most guardianships are uncontested, certain relatives of the child are entitled to legal notice of the guardianship proceeding at least 20 days before the hearing to decide the custody, unless they sign a waiver of notice. Often the notice is only a formality since the family is in agreement as to who is willing and able to care for the child.

The following persons are entitled to personal 'service' of process (notice) of the guardianship proceeding and must be personally given a copy of the guardianship papers:

• the minor's parents
• the child (if 12 or over)
• any existing legal guardian or nominated guardian

The following persons can receive notice by having the papers sent to them by regular US mail:

• the child's grandparents
• the child's brothers and sisters
• any adult with whom the child is living

Parents may choose to "nominate" a guardian, effectively consenting to the guardianship. It is actually quite common for parents who have turned over the care of their child to the child's grandparent or other relative due to the parent's own 'personal problems', to nominate and essentially endorse the appointment of a guardian for the child. Many parents would prefer to join the process and nominate a grandparent or other relative than risk the state coming in at some point and making the child what amounts to a ward of the state.

Relatives entitled to notice who are in agreement with your request to be appointed the child's guardian, may choose to simply sing a form waiving the requirement of service (notice) to them concerning the guardianship.

"Missing" Relatives

If any of the child's relatives entitled to notice of the guardianship process are "missing", there is a special procedure designed to locate those entitled to notice that are missing, while allowing the guardianship process to proceed.

There is no legal requirement that you do the impossible - notify a person who simply is unknown or is missing. BUT you are required to make a good faith effort with due diligence to locate missing relatives entitled to notice.

Making a good faith effort with due diligence has become much easier in the age of electronic communications and information. Telephone directories and many public records are now available over the internet or through electronic bulletin boards. While the court has discretion to determine what exactly constitutes a good faith effort, in general common sense prevails. What is reasonable?

You are required to complete a Declaration of Due Diligence to be attached to the initial paperwork telling the court what efforts you have made to locate the missing party. For example:

• checking with directory assistance in cities where the relative lived most recently
• contact other relatives for information on the missing party
• check with former employers
• check last known address
• check public voter's registration records
• check with the driver's licensing agency in the missing party's state

The Process Of Guardianship

Once the necessary paperwork is completed, the process is much like that of most other civil proceedings.

Step 1: Filing Paperwork: Filing the necessary paperwork requires getting the paperwork to the clerk's office at the courthouse (in person or by mail) and paying the filing fee.

Setting A Hearing.The procedure for setting a hearing date varies slightly from county to county. In some counties the clerk will set a hearing date to have your request for appointment as a guardian heard by the court when you file the initial paperwork. (Assuming your request is approved, the judge will sign the final paperwork at the hearing and the appointment is complete.)

Step 2: Service to Relatives: Much like any other civil proceeding, after filing, those parties entitled to notice (service), in this case the child's relatives, are entitled to receive a copy of the court papers filed asking the court to appoint a guardian. Some relatives are entitled to personal service while more 'distant' relatives can be notified (served) through the mail.(see the section above).*Note: some counties require an investigation prior to setting the hearing. (see the section below on guardianship investigation)

Service of Local Social Services Agency:Each county has a social services agency that 'screens' proposed guardians for a history of child abuse or neglect. Some counties require an additional investigation by an investigator of the superior court in which you file the guardianship.

Step 3: The Hearing:The hearing itself is surprisingly routine and informal. Both the proposed guardian and the child or children are required to attend the hearing. The judge may ask you some basic questions to better understand the situation and the interests of the child, and may ask the child (if appropriate) a few simple questions like for example, "Do you understand that your grandmother wants me to let her take care of you? Is that alright with you?"

When the judge is satisfied with the information he or she has, he will 'tell' you what his decision is, generally by reciting the same thing in the final order appointing a guardian of a child. Usually the judge will sign the papers at the hearing. The clerk will then give you file stamped copies of the judge's order.

Guardianship Investigation

As mentioned above, some counties require an investigation beyond the routine inquiry made by the county social services agency. The county agency is simply making a basic check to see if a complaint for child abuse or neglect has ever been made against the proposed guardian.

California law requires each county to set guidelines on whether or not an investigation beyond the basic agency check is required in guardianship proceedings. Some counties require no such investigation, others waive the investigation if the proposed guardian is a relative of the child (such as a grandparent or aunt) and still others counties require investigations in every case.

The investigation generally consists of someone from the appropriate going to the home of the proposed guardian, at a convenient prearranged time, and conducting what amounts to an interview.

Filing Fees

You pay the same filing fees and court costs that lawyers pay. The current filing fee is $182. If your county requires an investigation, the fee for the investigation will from one county to another but is generally in the range of $100 - $150 and is in addition to the 'regular' filing fee of $182 charged for guardianship.

Waiving Court Fees & Costs

To ensure that no low income citizen is denied access to the courts because they can't afford the filing and court fees, the court may grant a waiver of the fees and costs. Citizens currently receiving public assistance such as AFDC, Food Stamps, County or General Relief, SSI, SSP, or most public benefits generally qualify under California Guidelines to have fees and costs waived.

The following chart lists the qualifying income for waiver of court fees and costs from the Judicial Council form entitled "Information Sheet on Waiver of Court Fees and Costs,"

*Revised April 12, 1994

About The National Divorce & Bankruptcy Center

Pro Se Publications
2831 Roanoke
Wichita Falls
76306
Texas
Voice: (940) 851-0762

E Mail: divorcehelp@sw.rr.com