At times, parents who cannot take care of their children but are not comfortable putting them up for adoption choose to leave them under close family members and friends’ supervision. However, it could cause problems because friends or family members cannot decide for the child. Nonetheless, they can seek legal guardianship, a court order that gives another person(who is not a parent) the rights and responsibilities of looking after the child. If you are appointed as the guardian, you will get the same rights as the biological parent.
Before filing the petition, you need to go through all the rights and responsibilities of a guardian. You also need to reach out to counseling legal personnel to explain what the whole process entails. Acquiring legal guardianship can be a long and tiresome process that may take up most of your time, but having a guardianship attorney will save you from a lot of stress. If you are looking forward to acquiring guardianship, contact the Los Angeles Divorce Attorney, and we will promptly guide you through the entire court process.
A legal guardian can be:
An uncle or aunt
A foster parent
Someone close to the child
A guardian is only appointed to a child below 18 years. But for immigrant minors looking for juvenile immigrant status, California laws accept the appointment of a guardian to a minor who is over 18 years but not older than 21 years.
Many guardianships happen because either one of the two biological parents cannot take care of their child correctly, but they want their child/children to be in a safe environment that suits them better. Some of the situations that could lead to seeking guardianship for a child include:
One or both parents have a severe mental disorder.
One or both parents have a severe physical disability.
One or both parents are addicts and need to attend rehabilitation.
Imprisonment of one or both parents
The military deployment of one or both parents
For some reason, the parents cannot take good care of the child.
The court will always look out for the child's best interest to ensure that the child grows in a stable, safe, and loving environment.
Establishing Guardianship in California
The court uses the "best interest of the child test" when appointing a guardian to a minor. If you are requesting guardianship, you must prove to the court that the guardianship is in the child’s best interest and that you will provide the minor with a safe, loving, and stable environment.
Remember, parents have the right to raise their kids as they wish, and the court will only obstruct these rights in limited circumstances.
Guardianship Laws in California
The two common types of guardianship are:
1. Guardianship of a person
2. Estate guardianship
In some cases, the court will choose one guardian for both the person and estate, and at times, two guardians will be appointed each for one role.
Fundamental Responsibilities of a Guardian
As the guardian, you have the control, custody, and care of the minor. It is your responsibility to provide:
Dental and medical care
Clothing, food, and shelter
You should also ensure the child grows physically and emotionally, as well as offer protection and safety. You should also contact their school and physician often. Some of the other responsibilities include:
As the guardian, you have both physical and legal custody of the child. You also have the responsibility to make all decisions concerning the child. The biological parents of the child cannot make decisions relating to the child while in guardianship. Their rights are suspended(not terminated) while the child is in the custody of a guardian. But you can also consult with the parents on some matters related to the minor.
The child's education is also your responsibility. You choose the school the child should attend, and you should also participate in the school meetings as the child’s advocate. For the little ones, you may enroll them in daycare programs. If the minor has special educational needs, you should help the child to acquire a particular service.
You get to decide where the child lives. The child should primarily live with you, but you can make other arrangements with the court if they are in the minor’s best interest if need be.
However, you cannot move the child out of California without the court's authorization. According to California law, if the court allows you to proceed, you should create legal guardianship in the child's residing state. Different states have different guardianship rules; consult with your attorney to get information on the country where the child will reside.
It is your responsibility to cater to the child's medical needs. You mostly have the power to allow medical treatment to the child. But in cases, where surgery is required, and the minor is above 14 years, the procedures cannot be performed unless:
The child and the guardian agree to it
A court order authorizing the surgery is obtained
However, emergency cases are exceptional. Under portable guardianship, you are not allowed to put the child in a mental health facility unwillingly. But if counseling can help the minor, you can seek it and therapy for the child even though he/she is against it.
If the child is from a deprived, troubled, or conflicted family, you should look for agencies that may offer help. In case the child has special needs, it is your responsibility to meet the specific needs and look for services that may be appropriate. Counseling is crucial for children who are victims of abuse or have come from abusive families or those living with disabilities. You can check with local agencies that offer child protective services for referrals to agencies that can help the minor.
The biological parents must offer financial support to the child. You can also obtain child support. However, the child may also benefit from various public and private funds like the TANF.
In guardianship, visitation can be challenging and complex, and trying to balance the right to visitation with the duty to prevent harm can be challenging. The court may order you to accept visitation from the child's parents and close relatives. However, if the visitations are causing more harm than good to the child, the court can issue restriction orders.
Though the parents may have the right to visitation, if the parent poses risks to the child, you can be ordered to supervise the visitations.
As the guardian, you have the power to sanction the application of a driving license by the minor. If you agree, you will be responsible for any damage caused by the minor while driving. You should also get insurance cover for the child in case they are involved in a crash.
The guardian and the court must authorize the minor's decision to marry. If the minor marries legally, the guardianship ends since he/she is considered an adult in California.
Change of Address
If either you or the minor changes their address, you should write to the court notifying them. Remember, you should always get permission from the court before leaving for another state or country with the child.
The Child’s Misconduct
As the guardian, you are responsible for all the damages and harm caused by the minor. There are specific regulations covering damage caused by the use of a gun. You should consult your lawyer if you are worried about your liabilities.
At times, the court may add more duties to you as the guardian. For instance, you may be required to enroll in parenting classes or undergo counseling to acquire certain minor services. You should always follow the court orders.
Termination of a Person's Guardianship
Various reasons lead to the automatic end of guardianship. Some of the reasons include:
When the child reaches 18 years
When a child is adopted
When the minor marries or gets married
When the minor join the military service
It must be proved that guardianship is no longer critical.
Guardianship of The Estate Under California Law
This type of guardianship happens when a child has inherited assets and cannot protect the assets; hence, a person is appointed to look after those assets. If you are designated as the estate guardian, you will have the responsibility to manage the child's property, money, and income until the minor turns 18years. As the estate guardian, you will be held to a high standard termed as "fiduciary duty," which you should not violate whatsoever.
Fiduciary Duties of Estate Guardians in California
These duties comprise the top care under the law. In estate guardianship, the guardian is termed as the "fiduciary,” and the child is known as the "principal" or "beneficiary.” There are five types of fiduciary duties of a guardian. They include:
Duty of Good Faith — You have the responsibility to make good faith efforts to avoid going against the law, further the interests of the beneficiary, and fulfill your obligations.
Duty of Loyalty — You are not allowed to use your position to benefit yourself or for your gain.
Duty Disclosure — You have to communicate honestly with the beneficiary.
Duty of Care — Before deciding on the beneficiary's assets, you should use all information materials available.
Duty Prudence — You have to protect the assets of the beneficiary with extra caution and care.
Managing The Estate
There are additional responsibilities that you as guardian of the estate bear. These responsibilities include:
Keeping Assets Separately
You are supposed to keep the child's property and money from the estate separate from other people, even yours. When opening a banned account for the estate, you should state that it is not your account but a guardianship one, and you are supposed to use the child’s social security number when opening this type of account. Depositing estate money in your account or mixing could land you in serious legal problems.
Locate the Estate Property
You are supposed to locate, secure, and protect the assets and income of the minor. It would be best if you also modified the ownership of assets to the estate guardianship name.
It would help if you also determined the property’s worth. Plan to have a referee appointed by the court to decide the value of the property.
Additionally, file an appraisal and inventory, which should be done within 90 days.
As the estate's guardian, you are supposed to manage the minor's assets with a wise person’s care. Meaning you should be careful not to make any investments that could be risky or illegal.
Investments and The Interest Bearing Accounts
As the estate guardian, you are supposed to put estate funds in an interest-bearing account apart from checking accounts, which are meant for the usual expenses. You should not deposit more than $100,000 in a single federal insured financial institution. Before making any investments, it is essential to consult your attorney on the same.
Blocked accounts are accounts/financial institutions that money has been placed in and cannot be withdrawn without the court’s authorization. You are supposed to follow the court's procedures and regulations and procedures while depositing funds in a blocked account. Using a blocked account saves the estate from the bond.
As the estate’s guardian, you should ensure adequate insurance covering all the assets. During the entire guardianship period, you should keep the insurance until the assets are sold.
On your power, to deal with estate assets, you will have additional restrictions. Some of these include:
You are not supposed to pay your attorney or yourself any fees without the court order.
You are not supposed to use the estate assets to gift anyone.
You are not supposed to request money from the estate.
You cannot use the estate funds to buy property without a court order.
If you spend the estate funds without the court's authorization, you may be forced to repay the estate from your money, and you may also lose the guardianship.
Always consult your attorney on some of the legal requirements related to mortgages, property estate investment, leases, and sales.
Ninety days following your appointment, you are supposed to file financial reports, for instance, an inventory and an appraisal indicating the assets' value signed by the referee.
Your accounting report should include the following:
All interests earned
Every transaction date
The reason for every transaction
Money collected and
Money spent and what it was spent on
Common Guardianship Issues
Various issues arise in guardianship, some of which include:
The guardian does not relate with the child’s current needs — You must be personally tailored to the child’s specific needs. The child is supposed to show improvement in their health(especially if they had a health problem). Some guardians do not relate to what the child is currently experiencing, even in addiction cases; they do not take the proper step to help the minor improvements. If the child's well being is not observed, the relatives or close friends can request the court to change the guardianship.
The guardian does not consult with the court if even when he/she is supposed to — Even though you have the rights to make most decisions concerning the child, there are things that you are supposed to first get authorization from the court before doing—for instance, moving out of California, allowing the baby to stay under the care of some else for long, or forcing the child to go into a mental or rehabilitation center without the court's intervention. If you consistently practice this, it may lead to the termination of the guardianship.
The guardian does not respond to requests for guardianship records or information — As a guardian, you should always respond to any court's injunction. It would be best if you also issued the court with a yearly report status of the child. It is a fundamental part of the guardianship which should be obeyed and followed. These reports and information help the court track the child’s progress and if there is an improvement in their health if they had a health problem.
The guardian does not make the minor to choose his/her interpersonal relationships. As a guardian, you must respect the civil rights of the child, and you must always consult with them and treat their opinions, values, and feelings with respect. Unless the court orders restrictions or protective orders, the child has the right to have their relationships.
Find a Family Law Attorney Near Me
The pitfalls of guardianship can be avoided. If you are a parent, guardian, or aspiring guardian, you need to reach out to a guardianship attorney for legal help. Our attorneys at the Los Angeles Divorce Lawyer are dedicated and determined to help you through this process. Our lawyers also have exceptional skills and are experienced in handling guardianship cases under California law. Contact us today at 310-695-5212 for professional and confidential services.