21 Jan How Guardianship is Granted in California
What happens to children when their parents are accidentally killed in a car crash, sent to prison, or for some other reason become unfit to look after them? In California, like many other states, a guardian or guardians may be granted custody of the children, either temporarily or permanently.
A guardian is not a parent. It is almost always a close relative of the child or children, such as an uncle or aunt or a grandparent. In some cases, this person or persons may file a petition for guardianship because they believe that they are the best option for the children in the particular circumstances. Just because a petition for guardianship has been received by the California Family Court, this does not necessarily mean that guardianship will be granted. As in all cases of child custody, the court will make a decision based on the “best interests of the child(ren).”
Reasons for granting guardianship
There are a number of reasons why guardianship may be granted. These include:
- domestic violence;
- drug addiction;
- military duty abroad;
- dire financial circumstances;
- other reasons for an inability to care for the children or demonstrated unfitness to care for the children.
Temporary or permanent guardianship?
The preferred type of legal guardianship granted to a close relative is temporary guardianship. This is because in the court’s view the parental relationship is still regarded as very important and if the circumstances of the parent(s) change, then there is a benefit to returning care to the biological parents. All decisions are made in the best interests of the child, but many guardianship decisions are not made lightly and can be very emotionally disturbing and contentious.
Permanent guardianship may be granted in exceptional circumstances. Obviously, if both parents have both died or been killed, then permanent guardianship will be considered. This category of guardianship is less likely if at least one of the biological parents remains alive and at some point in the future judged capable of caring for the children.
What does guardianship mean in practice?
When someone or more than one person, typically a married couple, are granted guardianship, they typically take on the role of caring for the child(ren) as if they were their own children. That means that they assume all responsibility for the care and welfare of those children and are expected to make all important future decisions about the care and welfare of the children.
Just because guardianship has been granted to a relative does not necessarily mean that the biological parents have no rights in relation to the children. They may be granted visitation rights and may resume care of their own children at some later date if the reasons for custody being taken away from them change.
Guardianship, for this reason, is not the same as adoption. If a parent’s child(ren) are adopted, then they lose all rights of visitation and contact with those children from the time that the children are adopted.
How is guardianship initiated?
Guardianship may be initiated by a potential and willing guardian or may be initiated because the biological parents are determined to be incapable of caring for their own children and the children are removed for their parents care as a result of a decision by the juvenile dependency court. The decision is usually made by the state’s Child Protective Services. If the guardianship is independently initiated by a close relative or family friend, then the petition will be filed with the family court for a decision to be made. This type of guardianship, whether temporary or permanent, is known as probate guardianship.
Guardianship can be an emotionally and psychologically charged affair. Whether you are seeking to petition for guardianship or you are contesting a guardianship decision, you are advised to seek the help of a family law attorney at the Law Office of Damian Nolan in Orange County, California at 562-634-1115 before taking any legal action.