Guardianships

Neil Bowman-Davis Guardianship Policy – a child must have a responsible adult for their care and support Parents possess the exclusive right to make decisions regarding care, custody & control in all facets of their lives Other family members or friends may care or support the child, but have no legal right to make critical or everyday decisions Why Guardianship? Common scenarios Parent dies Parent incarcerated Dependency proceeding for abuse or neglect Parent not capable of providing care Guardianship is mechanism that legally transfers the rights and responsibilities of parents to some other person Not every child has a responsible parent Guardianship of the Person Suspends rights of parents Guardian replaces parents for all purposes Fundamental obligations Care, custody & control of the minor Provides food, clothing & shelter Provides medical & dental needs Guardianship of the Estate Additional responsibility of managing estate Types of Guardianships Residence Right to determine where child lives CANNOT move out of state without court approval Medical Treatment Authority to consent if < 14 If 14 or older, must have minor’s consent or court order Custody Full legal & physical custody to guardian Visitation may be granted to parents or other family members to preserve relationships Education All educational decisions Guardian's Rights Driver’s License May consent to obtain DL but financially responsible Enlistment in Services Upon entry, child emancipates Financial Support Parents still obligated to provide support Guardian may obtain support from parents Guardian may apply for public benefits for minor Temporary Urgent but not emergency Within 7 to 10 days Notice to parents required General Within 30 days Notice to second degree relatives required How long does it take? Responsibilities Prepare inventory & valuation of assets File Inventory & Appraisal Provide adequate insurance coverage Maintain financial records File accountings Make prudent investments Keep assets separate Use interest bearing accounts No gifts Court approval required for payment of any fees Guardian of the Estate - Duties Petition & Supporting Documentation Identifies parties, family members, and others who may be entitled to notice Indicates whether other existing cases Specifies need for the Guardianship and the relationship to the Petitioner How do you start the process? Interim Orders Court Investigation Social history of guardian, ward and parents Anticipated duration Report prepared and filed court CPS Investigation Screens for prior referrals of neglect or abuse If non-relative, Foster Home Licensure Screening Report prepared and filed with court What happens before court? Uncontested Letters of Guardianship issue May order referral to mediation Contested Court determines if good cause to suspend the rights of parents Letters of Guardianship issue May order referral to mediation At the hearing Before guardianship granted, court must find Granting custody to parent would be detrimental to child Granting custody to guardian is required to serve child’s best interest Policy favors stability in child’s life Presumed detrimental if guardian has assumed on a day-to-day basis the role of parent who has fulfilled the physical and psychological needs of the child for a substantial period of time What the court decides If the court grants guardianship, court may order visitation between parent and child Court may refer parties to Family Court Services for mediation Mediation can assist parties define visitation schedule Visitation can be supervised or unsupervised, depending upon needs of the parties. Court may grant visits to parents Guardianship continues until Minor emancipates Reaches age 18 Court order Termination Proceeding Petition detailing why guardianship should terminate May be contested or uncontested Termination of Guardianship Court must find that is in best interest of child to terminate the Guardianship Burden is placed on parent to show overall moral fitness, not just a change in one aspect of their life Continuity and stability important Balance: the longer the guardianship is in place, the greater the showing needed to terminate Termination Standards Guardian may make relationship permanent While guardianship in place Guardians are not financially responsible Birth parents still obligated to support Birth parents rights suspended, but still intact If Adopted Adoptive parents become financially responsible Birth parents relieved of future financial obligation Rights of birth parents are forever terminated Adoption Timing of adoption petition depends upon how guardianship imposed In most cases, the guardian may petition for adoption after 1 year When can guardian file for adoption? Gather information Assess urgency Discuss alternatives Identify missing information Assign homework Assemble paperwork Instruct regarding filing and service How our office can help We are not their attorney There is no attorney-client relationship Our conversations are not confidential We do not give legal advice We will not appear in court on their behalf If requested, we will provide assistance to the other side of their legal issue What we cannot do 825 Brown Street Napa, CA 94559 (707) 299-1137 Neil.Bowman-Davis@napacourt.com Neil Bowman-Davis Family Law Facilitator Napa Superior Court