Sometimes a child’s parents can’t properly take care of the child for various reasons, whether they are ill, in jail, or they may have died. Here’s what you need to know about establishing a guardianship for a child in California.

What is a guardianship?

A guardianship is a legal designation that an adult who is not a child’s parent is legally responsible for the child’s care because the child’s parent is unable to care for them.

It suspends the parents’ right to physical custody of the child, and places the custody with another adult. It is not a permanent termination of parental rights; it only suspends the parents’ rights until the minor turns 18, is married, emancipated, adopted, or a judge terminates the guardianship.

When is guardianship necessary?

Guardianship for a child can be necessary for the following reasons:

• To provide long-term care to the child if the parents are incarcerated, ill, incapacitated, deceased, deployed (military), or otherwise unavailable
• To protect the child in case of abuse, abandonment, or neglect by the parents
• When a non-parent caregiver of a child needs:
  • To obtain private medical insurance for the child
  • To get consent for special education, including an IEP
  • To obtain certain public benefits

What are the rights and responsibilities of a legal guardian?

In California, a legal guardian has the following rights and duties:¹Probate Code Sec 2351-2360

• Care, custody, and control of the minor
  • Guardian is responsible for providing food, clothing, shelter, education, and all medical and dental needs
  • Must provide safety and protection, and emotional growth of child
• Fiduciary of child’s finances
  • Guardian is required to manage the child’s funds, collect and make inventory of assets, and keep accurate financial records and regularly file financial accountings with the court²Probate Code 2101
• Follow court orders regarding visitation by the parents or anyone else interested in visitation of the minor, e.g. grandparents
• May consent to child’s driver’s license
• May consent to child’s enlisting in armed services
• May (along with court) consent to the child’s marriage
• May establish residence anywhere in California – if moving within the state, must notify the court
• If the guardian wants to move out of California, they need to request to the court to approve this move (usually granted)
• May have liability for willful misconduct or negligent actions by the minor

What if there are two or more legal guardians?

If a minor has 2 or more legal guardians, both or all co-guardians must agree on all decisions for the child³ Probate Code 2105

In what circumstances would a guardianship be granted?

The court may appoint a guardian if it appears “necessary or convenient.”⁴Probate Code 1514(a) Guardianship should be in the child’s “best interest.”⁵Family Code Sec 3040 This includes assuring health, safety, and welfare of the child.⁶Family Code Sec 3020(a)

Generally, the minor should be living with the proposed guardian, unless the parent objects.

If there is abuse, abandonment, or neglect, it is recommended to call DCFS to remove the child immediately. Also you can file a petition for an emergency guardianship, called temporary guardianship, which would be heard within 7 to 10 business days.

Who has priority in terms of custody of a child?

The order of preference when granting custody is:⁷Family Code Sec 3040

1. Parent
2. Person whose home the child has been living in
3. Any other person

What happens if the parent objects to the guardianship?

If the child’s parent objects to the proposed guardianship by another adult, the court would only grant the guardianship if not doing so would be detrimental to the child.

Can a parent be appointed a guardian of their child?

Generally a parent cannot be appointed as a guardian of their child, with a narrow exception: if the parent has been diagnosed with a terminal medical condition, the court may appoint the custodial parent and a person nominated by the parent as joint guardians.⁸Probate code Sec 1514(b)(2); Probate code Sec 2105(f) The joint guardians then must agree on everything in order to exercise any power related to the child.

Is weight given to what the child wants?

Yes. If the child is over age 4, they will be interviewed as to what they prefer. If the child is over age 12, more weight will be given to what the child wants.

How to get guardianship of a child?

A guardianship in California can be obtained through filing a petition in probate, family, or juvenile court (dependency and delinquency).

What is the process of a guardianship case?

A guardianship case generally follows the following steps:

1. File petition forms at appropriate courthouse
2. Guardian is investigated by the court
3. Notice of Temporary Guardianship hearing (if applicable)
4. Attend Temporary Guardianship hearing (if applicable)
5. Notice of General Guardianship hearing
6. Attend General Guardianship hearing

How long is the process of a guardianship?

Guardianship can take up to 5 months or longer to be granted.

What is a temporary guardianship?

A temporary guardianship is an emergency guardianship granted when it is not possible to wait the 4-5 months for the permanent, general guardianship hearing. The need for a temporary guardianship may include for medical, educational, or other purposes. A permanent guardianship petition must already be filed.

Who must be notified of a guardianship hearing?

• The parents
• The minor, if 12 or older
• Grandparents
• Siblings, if 12 or older

What is the investigation for a guardianship petition?

If the proposed guardian is a relative of the child, they go to the courthouse to do an interview with the probate investigations department.

If not a relative of the child, Department of Children and Family Services (DCFS) will come to proposed guardian’s home and conduct the interview.

Are there ongoing filings for a guardian?

Yes, the court typically sets a hearing for 12 months after the guardianship is granted.

And every year after guardianship is granted, the guardian must file a Guardianship Status Report with the court.⁹Probate code Sec 1513.2 This report requests the following information:

1. Guardian’s present address and email
2. Child’s current address and current school
3. How child is doing in terms of health and education
4. If child is not in guardian’s home, why the child was moved

Further Resources

See our Guide to Laws for Parents, Guardians, and Caregivers

Contact Children’s Rights Project at Public Counsel for pro bono help with guardianship

See our Guide to Legal Help in California

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