A legal guardian is an individual who has the legal authority to care for and manage the affairs of a child. A legal guardian has the same responsibilities to and for the child as does a parent. The parent retains limited legal rights, including reasonable contacts and visits, and the parent can request the return of the child to their custody. The standard for this return is best interest of the child. The parent retains the duty to financially support their child.
This section covers two different types of guardianships: (1) Dependency Guardianships and (2) Probate Guardianships. Both types of guardianships involve children whose parents are unable or unwilling to care for them. The Dependency Court grants a “Dependency Guardianship” and the Probate Court grants a “Probate Guardianship.”
Dependency guardianships are granted by the dependency court. Once CPS is involved, and a dependent petition is on file in dependency court, the court has exclusive jurisdiction over the child. At this point, guardianship can be established in lieu of dependency or as part of a dependency permanent plan.
In lieu of dependency: A guardianship may be established in lieu of dependency if the biological parent(s) consent and the petition can then be dismissed in court. Where a legal guardian is appointed in lieu of dependency, no reunification services will be offered to the parents and the parent(s) must be so advised by the court. Welfare and Institutions Code § 360(a)
As the permanent plan: If the child has already been declared a dependent child of the court, the court may order guardianship of the child as a permanent plan. The court proceeds to permanent planning when parents are denied reunification services or when reunification services have been terminated and the hearing to select the permanent plan has been set. Welfare and Institutions Code § 366.26
Whether guardianship is established in lieu of dependency or as part of a dependency permanent plan, the social worker must provide a written assessment of the prospective guardian that discusses the appropriateness of a guardianship. The court must also review the assessment and determine that the proposed guardianship is in the best interest of the child.
TABLE OF CONTENTS:
The required assessment factors are detailed in Welfare and Institutions Code 361.5(g)(1) and include:
- Due diligence in locating and notifying absent parents.
- A review of the amount and nature of contact between the child, his or her parents, and/or his or her extended family since the time of placement.
- A review of the child’s medical, developmental, scholastic, mental, and emotional status.
- A preliminary assessment of the eligibility and commitment of any identified prospective guardian, which includes a social history, screening for criminal records and prior child abuse or neglect referrals, the ability to meet the child’s needs, an understanding of the legal and financial rights and responsibilities of guardianship.
- If the proposed guardian is a relative the assessment is to include all those factors in Welfare and Institutions Code §361.3.
- The duration and character of the relationship and the degree of attachment of the child to the prospective guardian.
- The prospective guardian’s strong commitment to caring permanently for the child and their motivation for seeking guardianship.
- A statement from the child concerning the proposed guardianship and whether the child over 12 years old has been consulted about the proposed guardianship, unless the child’s age or physical, emotional, or other condition precludes his or her meaningful response and, if so, a description of the condition.
- An analysis of the likelihood that child will be adopted if parental rights are terminated.
- Other ICWA considerations, for more information see Welfare and Institutions Code § 361.5(g)(1)
Criminal History Exception Note: There is case law that holds that a guardianship proposed in lieu of dependency, as opposed to a guardianship established as part of a permanent plan, does not have to meet the criminal history exemption requirement of Welfare and Institutions Code Section 361.4. Note there must still be a complete assessment, as outlined above, and a determination by the dependency court after reviewing the assessment, that the proposed guardianship is in the best interest of the child. In re Summer H. (2006) Cal.App.4th 1315, 1333-1334. “Section 361.4 is a placement statute. It’s object is to protect children who have been placed in the foster care system by evaluating prospective caregivers who are not licensed or certified foster parents by the same criteria imposed on prospective foster parents. Section 360, in contrast, is a parent-driven statute. It is dependent not on the child’s removal from the physical custody of his or her parent, and the county’s approval of the placement of the child, but on the parent’s consent to the guardianship and the juvenile [dependency] court’s determination that the proposed guardianship is in the child’s best interest….In concluding the appointment of a legal guardian under section 360 is not subject to the criminal records exemption requirement of section 361.4, we do not suggest the Legislature intended to allow a person who is disqualified from being certified as a foster parent to become a child’s legal guardian in all, or even most circumstances. To the contrary, it will often be the case that, if the proposed guardian has a prior criminal record, the guardianship is not in the child’s best interest.” [Emphasis Added]
Whether guardianship is established in lieu of dependency or as part of a dependency permanent plan, the dependency court maintains jurisdiction over the guardianship. Any application to modify or to terminate a dependency guardianship must be filed in the court that ordered the guardianship and issued the letters of guardianship. That court maintains jurisdiction over the guardianship once the dependency is dismissed. A motion to modify or terminate is filed on a form JV-180 Request to Change Court Order in which the petitioner requests the court reinstate the dependency in order to address the particular issue with the guardianship. Welfare and Institutions Code § 388
A relative caregiver must be given information regarding the permanency option of legal guardianship and adoption regardless of his or her immigration status. Welfare and Institutions Code § 361.5(g)(2)
Moving from Dependency Guardianship to Adoption
As stated above the dependency court maintains jurisdiction over the Guardianship. If the guardian wishes to adopt, the guardian should file a Request to Change Court order (JV-180), requesting the dependency court reinstate the dependency in order to set a new permanent planning hearing and consider changing the permanent plan to adoption. For more information, see our JV-180 webpage.
Welfare and Institutions Code § 366.3(c)
A probate guardianship petition may be filed by “a relative or other person on behalf of the minor, or the minor if 12 years of age or older.” A relative may file regardless of the relative’s immigration status. Probate Code § 1510 (a)
The forms and procedures for filing a probate guardianship can be found on the California Courts website and they are listed below. Also, many California counties offer guardianship information on their superior court websites, and many offer onsite self-help clinics at their local probate or family court. Please check your local court page.
As with dependency guardianships, in probate guardianships there must be an “investigation" and a “report and recommendation” filed with the court. In probate guardianships, however, the investigation can be waived by the court. In dependency guardianships it is mandatory.
“Investigation where the proposed guardian is a relative shall be made by a court investigator. Investigations where the proposed guardian is a nonrelative shall be made by the county agency designated to investigate potential dependency.” Probate Code § 1513(a)
The report shall include but not be limited to:
- A social history of the proposed guardian.
- A social history of the proposed ward, including an assessment of any identified developmental, emotional, psychological, or educational needs and the capability of the petitioner to meet those needs.
- The relationship of the proposed ward to the guardian, including the duration and character of the relationship and, where applicable, the circumstances whereby physical custody of the proposed ward was acquired by the guardian, and a statement of the proposed ward’s attitude concern unless the statement of the attitude is affected by the proposed ward's developmental, physical, or emotional condition.
- The anticipated duration of the guardianship and the plans of the natural parents and the proposed guardian for a stable and permanent home for the child.
Probate Code § 1513(a)
How to Petition for a Probate Guardianship
Fill out and file the following forms with your local Probate Court
- GC-210 (P) – Petition for Guardianship
- Declaration attached to GC-210 (P) (include relevant facts re suitability)
- GC-210 (CA) – Child Information Attachment
- GC-211 – Consent to Guardianship (biological parents)
- GC-212 – Confidential Proposed Guardian Screening Form (basic questions re health)
- GC-120 – UCCJEA Declaration
- GC-120 (A) – Attachment to UCCJEA (if more space needed)
- GC-020 – Notice of Hearing (sent to biological parents)
See also Guardianship Pamphlet GC 205.
Moving from Probate Guardianship to Adoption
A proceeding to have the child declared free from the custody and control of one or both parents, in order to pursue an adoption can be brought by the guardian if:
- The parent(s) do not have legal custody of the child.
- The child has been in the physical custody of the legal guardian for a period of not less than two years.
- The court finds that the child would benefit from adoption by his or her guardian. For more information see Probate Code § 1516.5(a)
See also Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1119 below: “As guardianship continues for an extended period, the child develops an interest in a stable, continuing placement, and the guardian acquires a recognized interest in the care and custody of the child.”
Differences Between Dependency Guardianships and Probate Guardianships
In Dependency Court, Child Protective Services, a state and county agency, is primary in the process. On the other hand, in Probate Court the prospective guardian petitions for guardianship of the child. Assessment of the suitability of the guardian and of the child is mandatory in a Dependency Guardianship and in the discretion of the court in a Probate Guardianship. Reunification services and services supportive of the parent/child relationship of available and, in most cases, required in a Dependency case and not available through the Probate Court. Also, the financial payments and benefits available to children in Probate Guardianships and Dependency Guardianships differ.
Duties of a Guardian of the Person; Both Probate and Dependency
As guardian of the person, you will have these rights and responsibilities:
- You decide where the child lives. If you move, you must tell the court in writing right away. If you want to move out of California, you have to get the court's permission.
- You decide where the child goes to school. You must stay involved in the child's education, and help the child get any special services, like tutoring, that he or she needs.
- You must take care of the child's medical and dental needs, making sure he or she gets proper care. In most cases, you can also make decisions about any medical treatment the child needs.
- You must get the child counseling or other mental health services if the child needs them. But you cannot place the child in a mental health institution without a court order unless the child agrees.
- At least once a year, you will turn in a status report to the court. You must also meet with any court investigators or social workers sent by the court and come to court when the court tells you to. The court can also order you to take on other duties or can place special conditions on you as guardian, if needed.
- In most cases, guardians, like parents, are responsible for harm or damages the child causes, including graffiti or getting in a car accident. Like a parent, a guardian is responsible for the intentional acts of the minor, and also for negligent supervision of the minor or the negligent entrustment of a motor vehicle (giving the child access to a car when he or she is unlicensed or otherwise not capable of handling the responsibility).
- You cannot let the child live with his or her parents or anyone else. The child must live with you unless the judge says otherwise. You can let the child stay with other people for visits or short periods of time without a court order, as long as the child continues to primarily live with you, the guardian.
- The parents may be able to visit and see their child, but you (or the court) decide when and how often. The parents may get custody of their child back in the future if the court decides that the child no longer needs to have a guardian.
You will have the right to make these decisions affecting the child:
- You may give the child permission to apply for a driver's license. Or you may choose to not give him or her permission.
- If you let the child apply for a license, you must also get car insurance for the child.
- If the child has an accident while driving your car, you may be responsible for any damages caused by the accident.
- You may give the child permission to enlist in the military.
- If the child enters into active duty with the armed forces, the guardianship will end. California law will consider the child to be an adult.
- Both you and the court must give permission for the child to get married.
- If the child gets married, the guardianship will end. California law will consider the child to be an adult
Excerpt from the California Courts website: www.courts.ca.gov “Rights and Responsibilities of Guardians”
Comparison Between Guardianship and Adoption
|In a Guardianship:||In an Adoption:|
Excerpt from California Courts www.courts.ca.gov self help page on Guardianship
Financial Help for Guardians
There are different kinds of financial assistance for guardians:
- Welfare: If you are related to the child, you can receive welfare even if you do not need the money. You can also receive welfare if you are not related to the child but you need financial help.
- Foster care payments: Some guardians can receive foster care payments. These payments can be higher than welfare payments.
- Kin-GAP (Kinship Guardianship Assistance Payment Program): You can receive Kin-GAP if you are related to a child in a dependency case. These payments are the same as as foster care payments.
- SSI (Supplemental Security Income): If the child has a disability, he or she may be able to receive SSI or state disability benefits. You can use this money to take care of the child.
- Medi-Cal: Guardians can receive Medi-Cal for the child and for themselves if they are financially needy and are related to the child.
Probate Guardians who are relatives can apply for Cal-Works and Medi-Cal. Unrelated Guardians can apply for state-only foster care payments and for Medi-Cal. Application is made at the local county Health and Human Services eligibility office.
The Indian Child Welfare Act (ICWA)
The Indian Child Welfare Act applies to all child custody proceedings including legal guardianship (both dependency and probate). There is, first and foremost, an affirmative and continuing duty for the court, social services assigned social worker, probate court investigators, or any appointed investigator, to investigate whether the child who is the subject of a guardianship is an Indian child. For more information, see our ICWA webpage.
- Cal Rule of Court 5.481 http://www.courts.ca.gov/cms/rules/index.cfm?title=five&linkid=rule5_481 (applicable to all child custody proceedings).
- Welfare and Institutions Code 224 et seq.
- Probate Code 1510(c)(6)&(i),1513(h)
- Probate Code 1459.5 which specifically makes Welfare and Institutions Code 224.3 applicable to probate proceedings.
- Form ICWA-005-INFO “Information Sheet on Indian Child Inquiry Attachments and Notice of Child Custody Proceedings for Indian Child”
Special Immigrant Juvenile Status (SIJS)
Any state court with authority over the ‘custody and care of juveniles is authorized make the findings necessary for Special Immigration Juvenile Status (SIJS), i.e. SIJS findings may be made by both the Dependency Court and the Probate Court. SIJS status permits certain foreign children present in the United States who have been abused, neglected, or abandoned and who are unable to be returned to their parents to obtain a green card certifying lawful permanent residence and legally remain and work in the United States. For information on SIJS eligibility requirements and the application process see the U.S. Citizenship and Immigration Services website
A Guardian Ad Litem
A guardian ad litem is nothing like a guardian of the person or estate of a child or adult. A guardian ad litem is a court-appointed person that stands in the shoes of a child in a court proceeding in which the child has some interest because a minor lacks the legal capacity to make decisions. A guardian ad litem can be a parent, a close relative, or an attorney, but is usually an attorney. A guardian ad litem can also be appointed for an adult who is unable to make decisions.
Pertinent California Court of Appeal Case Excerpts:
Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1119, 1123.
“Long before the advent of the dependency statutes, probate guardianships were instituted when ‘conditions [were[ shown to be such, by reason of the mental and moral limitation or delinquency of parents, that to allow the child to continue in their custody would be to endanger [the child’s] permanent welfare.”…After the passage of the juvenile dependency statutes, probate guardianships have continued to provide an alternative placement for children who cannot safely remain with their parents.”
“The differences between probate guardianships and dependency proceedings are significant. Probate guardianships are not initiated by the state, but by private parties, typically family members. They do not entail proof of specific statutory grounds demonstrating substantial risk of harm to the child, as is required in dependency proceedings. Unlike dependency cases, they are not regularly supervised by the court and a social services agency. It is the family members and guardians who determine, with court approval, whether a guardianship is established, and thereafter whether parent and child will be reunited, or the guardianship continued, or an adoption sought under [Probate Code] section 1516.5.”
“In 2003 the Legislature enacted Probate Code section 1516.5, making it easier for children in probate guardianship to be adopted by their guardians. Section 1516.5 authorizes the termination of parental rights when the guardianship has continued for at least two years, and the court finds that adoption by the guardian would be in the child’s best interest. In this case, a mother whose rights were terminated under section 1516.5 is unconstitutional on its face because it allows the fundamental rights of parenthood to be extinguished without a showing that the parent is currently unfit, or that termination of parental rights is the alternative least detrimental to the child. We hold that section 1516.5 is facially constitutional. Generally, due process requires some showing of parental unfitness before rights are terminated to protect the parent’s fundamental interest in child custody. However, it is settled that a showing of current unfitness is not always necessary when a court terminates parental rights. Section 1516.5 applies to parents whose custody rights have been suspended during a probate guardianship. A termination proceeding under this statute occurs only whet e parent has failed to exercise custodial responsibility for a two-year period, with the possible exception of visitation. In this context, it would make little sense to require a showing that the parent is currently unfit. As guardianship continues for an extended period, the child develops an interest in a stable, continuing placement, and the guardian acquires a recognized interest in the care and custody of the child.”
Guardianship of Christian G. (2011) 295 Cal.App.4th 581, 596, 599-602, 611
“Central to this appeal is [Probate Code] Section 1513, subdivision (c), which requires the probate court to refer a guardianship case to CPS whenever it is alleged that a parent is unfit. If the investigation finds that any party to the proposed guardianship alleges the minor’s parent is unfit, as defined by Section 300 of the Welfare and Institutions Code, the case shall be referred to the county agency designated to investigate potential dependencies. Guardianship proceedings shall not be completed until the investigation required by Sections 328 and 329 of the Welfare and Institutions Code is completed and a report is provided to the court in which the guardianship proceeding is pending.”
“Much of the differences between probate guardianships and juvenile court proceedings can be explained historically. Probate courts adjudicated guardianship as part of the disposition of a decedent’s estate long before the juvenile dependency statutes came into being. Guardians may be appointed for many reasons that do not involve a contested removal of a child from his or her parental home. For instance, a guardian may be appointed when both parents are deceased or their whereabouts unknown, when a sole parent is incarcerated, or when the parent voluntarily relinquishes the child to another person. Because probate cases historically involved orphans or children of absent parents, guardianship law developed no counterpart to the juvenile law’s focus on maintaining or reunifying the child with the parent. And because the cases were often uncontested, the same procedural safeguards – such as appointment of counsel – were not statutorily provided.”
“As a result of these two separate paths on which the law developed, there are currently a number of important differences between proceedings in juvenile court and guardianship proceedings in probate court. For instance, in dependency cases CPS must prepare a social study for te court in a format dictated by statute, including a case plan for placement of the child that must be formulated within 60 days after initial removal of the child from the home and updated at least once every six months.”
“Under the Probate Code there is no mandatory investigation at all, but rather it is discretionary with the court. (§1513, subd. (a).) If an investigation is conducted the Probate Code focuses on the proposed guardian’s qualifications and the child’s needs, making no mention of the parent’s circumstances or any preference for maintaining the family unit. (§1413(a)(1) & (2).) The parent may be asked about future plans for a “stable and permanent home for the child,” but even that inquiry may be waived by the court in the case of a relative guardianship. (§1513, supd. (a)(4).
“Although the probate court investigatory report in this cae appears to have been rather thorough and well-balanced, the Probate Code is far less specific a to what information is required in such a report, especially with respect to preexisting family home life, nor are timelines imposed for completion of the investigation comparable to those in juvenile court.”
“Beyond depth and timeliness of the investigation, the dependency process is procedurally more protective of parental rights than are probate guardianship proceedings. Indigent parents are represented by attorneys at government expense whenever “the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care,” unless they make “a knowing and intelligent waiver. Had the case proceeded through the dependency channel, an attorney also would have been appointed….On the other hand, counsel is not provided for adult litigants at public expense in probate guardianship proceedings, nor is counsel appointed for the child, except in the court’s discretion…”
“In addition, if the juvenile court removes a child from parent’s custody, it must, with some exceptions, order social welfare services for the child and parent including “counseling or other treatment services to facilitate reunification of the family…One exception is if the parent is suffering from a mental disability…No such finding was made in this case nor was it a subject of inquiry under the Probate Code…Reunification services are time-limited, but it cannot be doubted that they frequently result in a child being returned to the parents…A guardianship may be ordered by the juvenile court without reunification efforts for a qualified parent only if the parent waives reunification services and agrees to the guardianship.”
“On the other hand, no provision of law allows the probate court to order reunification services for the parent and child in the context of a probate guardianship. Thus, not only are parental rights not expressly protected in probate guardianship proceedings, but there is no mechanism available to the probate court to nurture and support the parent-child relationship, even assuming it believed such efforts might result in providing a suitable home for the child.”
“Based on the foregoing considerations, we cannot deem the probate court’s failure to refer the case to CPS to be harmless error. The order granting…permanent guardianship…must be vacated, the letters of guardianship revoked, and a referral to CPS must be made before any further disposition of the guardianship.”
In re Kaylee H. (2012) 205 Cal.App.4th 92
Shortly after birth Kaylee was placed by her parents into the are of a relative who, with the parent’s consent, filed for guardianship in the Probate Court and was granted temporary guardianship. The parents had substance abuse and legal issues. Because there were allegations of parental unfitness the Probate Court properly referred the case to the social services agency for review. The social worker investigated, declined to file a Section 300 petition, and recommended a permanent guardianship be established in Probate Court. The Juvenile Court reviewed the social worker’s decision and directed the filing of a 30 petition out of concern that in Probate Court the parents would be proceeding without the advice of counsel, without the offer of reunification service and should reunification fail legal guardianship is not the preferred permanent plan for this age child.
The case holds that “While the juvenile court impliedly, and properly, found that because of her parent’s circumstance there was a prima facie showing that Kaylee was a child described in section 300, it abused its discretion when it did not then consider whether a dependency petition was necessary to protect Kaylee. The record shows that Kaylee was not in the care and custody of her parents, but rather in the custody of a suitable and protective guardian.”
The Guardianship Book for California: How to Become a Child’s Legal Guardian. A Nolo Book by Attorneys David Brown and Emily Doskow, Eighth Edition. February 2011.