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Guardianships

Overview of Guardianship Process
by Neil Bowman-Davis on 5 February 2014

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Transcript of 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
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