Kosloff & Greenwood, 
A Professional Corporation 
 
  

Probate Guardianships

 

A. Guardianship Overview

     In California, three different branches of the court system make decisions about child custody. When there is a custody dispute between two parents over a child, that matter is heard in Family Court. If Child Protective Services is involved in removing the child from the custody of a parent, or if the child is a "dependent" or "ward" of the juvenile court, that matter is heard in Juvenile Court. When the court gives custody of a child under the age of 18, or the child's property, or both, to a non-parent adult relative or other caregiver, the matter is heard in Probate Court.

     Essentially, a probate guardianship is a court proceeding in which a judge gives someone who is not the parent custody of the child (called a "Guardianship of the Person") or the power to manage the child’s property (called a "Guardianship of the Estate.")

B. Why Would a Person Apply to Become a Guardian?

     The need for a probate guardianship can arise in a number of different circumstances. Children may need legal guardians because their parents have died, abandoned them or are otherwise unable to care for them. There are many situations when it might be better for a child under the age of 18 to live with someone other than his or her parents. For example, a guardianship may be appropriate if one or both parents are experiencing any one of the following: a long physical illness, an overseas military transfer, enrollment in a treatment or rehabilitation program, problems with substance abuse, issues with anger management, or imminent incarceration.

C. What is the Role of the Guardian of the Person?

     Once a person has been appointed as guardian of the person, the guardian has the authority to make all of the decisions for the young child that a parent would normally make. The guardian assumes certain duties and obligations regarding the child's care and control.

D. What is the Role of the Guardian of the Estate?

     Once a person has been appointed as a guardian of the estate, the guardian is responsible for managing the child’s money, making smart investments, and carefully managing the child’s property. A guardian of the estate must collect and make a list of all of the child’s property, put all of the property in the estate’s name, determine the value of the property, and keep the child’s property separate from all other money, including the guardian’s money. Within 90 days after being appointed the guardian of a child’s estate, the guardian is required to file financial reports with the court.

E. What is the Procedure in Court for Obtaining a Guardianship?

     The process of obtaining a probate guardianship of the person and/or estate begins when the person who is seeking to be appointed guardian files papers with the court. There are two ways this can be done. One method is that the proposed guardian can file paperwork for a General Guardianship.

1. General Guardianship

     The paperwork required for a general guardianship includes documents describing the location of the child and his or her parents, explaining the situation that gave rise to the need for a guardianship, revealing information about the estimated value of the estate (if a Guardianship of the Estate is being sought) and providing background information on the person who is seeking to be named guardian.

      Once the papers for General Guardianship are filed, the Court requires that these documents be personally delivered or mailed to the child’s closest relatives, including mother, father, grandparents, and siblings. The Court at that time sets a hearing date, which is usually six to eight weeks from the date of filing the paperwork.


2. Temporary Guardianship

     If there is an emergency situation, the person seeking guardianship may apply for Temporary Guardianship. In a Temporary Guardianship proceeding, the proposed guardian may go in to court for what is called an ex parte hearing, and seek to be immediately appointed as the child’s caretaker or as custodian of the child’s funds. In cases where it appears that the child is in imminent danger of being harmed or neglected, if there is no official guardian appointed, or there is danger of immediate loss of the child’s property or money, the proposed guardian can appear in Court to present additional paperwork or to have an emergency hearing. A Temporary Guardianship is not a substitute for General Guardianship, and when a Temporary Guardianship is sought, General Guardianship papers must be filed along with the papers for Temporary Guardianship.

      There is no such thing as a "permanent guardianship," but once a General Guardianship is granted, it will last until the child turns 18, unless circumstances require a change, and papers are filed with the Court seeking termination of the guardianship. On the other hand, a Temporary Guardianship is considered an emergency order only, and will end when a general guardian is appointed by the court.

      Even if a Temporary Guardian is appointed at the ex parte hearing, the person seeking longer-term custody or control must still provide the child’s relatives with notice of the hearing for General Guardianship so that the child’s relatives have the opportunity to appear and to voice their consent or objections.

 F. How Does the Court Decide if a Guardianship is Appropriate?

     After the paperwork has been filed for a Temporary and/or General Guardianship, the Court assigns a neutral third party, a Probate Investigator, to the case. The Probate Investigator will then interview the parents, the child, and the potential guardian and make a recommendation to the judge about whether or not the child needs a guardian to be appointed. The court will conduct a background check of the person asking to be guardian in order to insure that there is no reason that living with him or her would be harmful to the child. The court will also check the background of any other persons living in the home of the proposed guardian as an additional safety measure.

      The judge then reviews the Probate Investigator’s report and recommendation and uses that information to decide whether or not to do the following: set the matter for Mediation, obtain additional reports or recommendations from a professional custody evaluator, appoint counsel to represent the child, grant or deny the request for guardianship.

      Generally, during the time in which a guardianship is pending a final decision, the judge will order either the parents or the Temporary Guardians to adhere to a visitation schedule to ensure that the child is having regular contact with all of the adults who wish to have custody of the child. That way, whether or not the guardianship is granted, the child will have had the opportunity to establish and maintain some level of comfort and familiarity with all of the family members or potential caretakers involved in the proceeding.

      The criteria that the Probate Investigator uses in making a report and recommendation is the same criteria that the judge uses in making a decision as to whether or not to grant the guardianship. The criteria used is this: the purpose of guardianship in the probate court is to protect the rights of the child. Both the Probate Investigator and the Judge focus their inquiry on the best interests of the child.

      According to California law, the best interest of the child is to be raised in a permanent, safe, stable and loving environment. In making a determination about the child’s best interest, the Probate Investigator and the Court may consider the following facts:

  •  History of abuse by the parent or the person seeking custody of the child.
  •  Habitual use of drugs or alcohol by the parent or person seeking custody of the child.
  • The child’s own preference and wishes, so long as the child is 12 or older and is able to understand and explain his or her wishes.
  • Whether or not the child would suffer harm from being removed from a stable placement with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child’s physical needs and psychological needs for care and affection, and who has assumed that role for a substantial period of time.
  • Whether or not the potential guardian has the maturity, experience and patience to care for the child.
  • Whether or not the potential guardian is too young or too old to be an appropriate caretaker for the child.
  • Whether or not the potential guardian has the material and emotional resources to care for the child.

G. What is Guardianship Mediation?

      If the court is not able to make the above determinations based on the paperwork submitted or the report of the Probate Investigator, if there are objections by the child’s parents or other relatives, or if more than one person has applied to be a child’s guardian, the court will generally set the matter for trial.

      Prior to trial, the court often sends the parties to Mediation. Mediation is a process in which one or two neutral facilitators work with the disputing parties to try to reach an agreement that everyone can live with. Often, in guardianship matters, one of the major hurdles for the parties is the issue of visitation. One of the frequent benefits of Mediation is that more often than not, if the parties to try to work together in Mediation, they are able to reach an agreement not only about where the child should live, but may also determine how often the child’s parents or other loved ones may visit with the child. If the parties are able to find a compromise solution in Mediation, often the court will accept the terms of the agreement and issue an order that follows the parties’ agreement.


H. When Would a Guardianship Case go to Trial?

     If Mediation is unsuccessful, the matter will proceed to a trial. Guardianship trials are not held in front of a jury, but in front of a judge or commissioner in a "bench trial." By the time a guardianship matter gets to the point where a trial is necessary, the court will appoint an attorney to represent the interests of the child. The court-appointed attorney is paid for out of Court funds, and acts as an advocate for the child’s best interests during the trial.

I. What Happens After a Guardianship is Granted?

     Once a guardianship is granted, either by the court prior to trial or after a bench trial, the guardianship will normally last until one of the following happens: the child turns 18 years of age, the child is adopted, the child gets married, the child joins the military, the court ends the guardianship, a different person (successor guardian) is appointed, or the child dies.

      Unlike an adoption, which terminates the parental rights of biological parents, a guardianship creates a legal relationship between the guardian and the child, but preserves the legal relationship between the child and his or her natural parents. In guardianships, the parents remain the legal parents, but their parental rights are suspended (rather than terminated) during the period of the guardianship.

      Thus, even though the guardian is granted full legal and physical custody of the child, and is responsible for making basic decisions about the child’s living environment and education, the parents still have a duty to support the child financially. A guardian is not obligated to support the child from the guardian’s own funds, so a local child support agency may be contacted about collecting support from the child’s parents.

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