Probate guardianships in California
This guide can help you:
- Understand what a guardian does
- Become a probate guardian
- Respond (object) if someone started a court case to become your child's guardian
- End a guardianship
- Ask for visitation rights, as a parent, in a guardianship
What is a guardianship?
A guardianship is when 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 may also mean someone manages the child's money or property if the child has a lot.
There are two types of guardianships
Guardianship of the person
The court orders that an adult (a guardian) other than a child's parent has the right to make legal decisions in a child's life and has responsibility for the child's care. For example, the guardian makes decisions about the child's medical care and where the child goes to school. The guardian must also provide the child with housing, food, clothing, and is responsible for the child's safety and protection.
Guardianship of the estate
The court orders someone to manage the child's finances. Guardianships of the estate are needed if a child has a lot of money, income, or property. For example, if the child inherited a lot of money from a parent who passed away. A guardianship of the estate is not needed if the child receives social security benefits or TANF/CalWORKs.
Guardianships of the estate have very strict rules about how the money is handled (called fiduciary duties). If you need this type of guardianship, it's usually best to have help from a lawyer.
One of the biggest differences is that, in a guardianship, the parents’ rights to child custody are taken away only as long as the guardianship lasts. Once they are able to care for their child again, the parent can ask a judge to end the guardianship.
Another difference is that when the court appoints a guardian, the court stays involved and supervises the relationship until it ends, either when the child turns 18 years old or when the court orders it ended. In an adoption, all the birth parents' rights are taken away permanently. The court does not stay involved once an adoption is final. The legal relationship between the child and the adopting parents is permanent and exactly the same as a birth family even after the child has turned 18 years old.
But note that after a child has lived with a guardian for a few years, the law makes it easier for the guardian to adopt the child than it would be for a stranger to adopt them.
There are many reasons a child may need another adult to care for them. For example, maybe one or both of the parents cannot take care of the child because they:
- Have a serious physical or mental illness
- Need time to seek treatment for a drug or alcohol abuse
- Will be away for work (like serving in the military overseas)
- Are serving time in jail or prison
- Have a history of abuse
In these cases, the child may need a guardian.
There may be other legal options, like having the parents sign something so another adult can enroll them in school or get them medical care. The best legal option depends on many personal factors, like if there are safety concerns for the child and whether the parent agrees.
How to become a guardian
This is a general overview of how to become a guardian. Get step-by-step instructions if you want to start a case.
File papers with the court to start the case
When you file forms with the court, you'll pay a fee.
Pay a fee It costs $225 to start a guardianship of the person case. A guardianship of the estate costs $450 to start. Check with the court for the exact amount. If the child who may need a guardian can't afford the fee, you can apply for a fee waiver. Fee waivers in guardianship cases are based on the child's income.
Let the child's family members know
Once you file your papers, the clerk will set a date for you to go to court. You must have someone deliver a copy of the papers and the date, time, and place of the court hearing to the child's parents and other family members. You can ask for the parent's consent to you being guardian, as well as the consent of the other relatives. But even if they consent, they can still change their minds, come to the hearing, and object.
Serve court papers Serving court papers is the official legal way to let someone know you started a court case.
Talk to an investigator and go to court
Before the judge makes a decision, the court will appoint someone to investigate why the guardianship is necessary or convenient and write a report for the judge. Then, you'll have a court date.
At court, you, the child's parents, and the child's other family members will have the chance to speak to the judge. Then, the judge will decide whether to make you guardian for the child.
If you become a guardian
You will need to send the court an update each year about the child's health and education, where the child is living if not with you, and other information. You may also need to go back to court to talk about related issues like:
- One or both parents ask for a visitation schedule with the child, or you want to change the visitation schedule.
- You want to move with the child.
You (or the child's parent, or the child) can also ask the judge to end the guardianship.
Guardianships in California
Get more information and step-by-step instructions
Before starting a guardianship case, find out more about what you would be expected to do if you are the child's legal guardian. You may have other legal options. If you decide you want to be a child's guardian, get step-by-step instructions on how to ask a judge to become a guardian.
Find out what a guardian must do
If you become a guardian, find out what you'll be expected to do. Consider other legal options.
Start a guardianship case
If you decide you want to be a guardian, start a guardianship case.
Steps if someone wants to be your child's guardian
Get information about how to agree or object to a guardianship if you receive a Petition and Notice that says someone wants to be the guardian of your child (or a family member's child).