- 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
Guardianship
Neil Bowman-Davis
Types of Guardianships
- 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
What we cannot do
Guardian's Rights
- 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
- Custody
- Full legal & physical custody to guardian
- Visitation may be granted to parents or other family members to preserve relationships
- Education
- All educational decisions
- 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
How our office can help
Responsibilities
- Gather information
- Assess urgency
- Discuss alternatives
- Identify missing information
- Assign homework
- Assemble paperwork
- Instruct regarding filing and service
- Financial Support
- Parents still obligated to provide support
- Guardian may obtain support from parents
- Guardian may apply for public benefits for minor
- Driver’s License
- May consent to obtain DL but financially responsible
- Enlistment in Services
- Upon entry, child emancipates
When can guardian
file for adoption?
Guardian of the Estate
- Duties
- Timing of adoption petition depends upon how guardianship imposed
- In most cases, the guardian may petition for adoption after 1 year
Why Guardianship?
- Make prudent investments
- Keep assets separate
- Use interest bearing accounts
- No gifts
- Court approval required for payment of any fees
- Prepare inventory & valuation of assets
- File Inventory & Appraisal
- Provide adequate insurance coverage
- Maintain financial records
- File accountings
How long does it take?
Adoption
- Temporary
- Urgent but not emergency
- Within 7 to 10 days
- Notice to parents required
- General
- Within 30 days
- Notice to second degree relatives required
- 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
How do you start the process?
Termination Standards
- 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
Not every child has a responsible parent
- 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
- 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
What happens before court?
Termination of Guardianship
- 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
- Guardianship continues until
- Minor emancipates
- Reaches age 18
- Court order
- Termination Proceeding
- Petition detailing why guardianship should terminate
- May be contested or uncontested
At the hearing
Court may grant visits to parents
- 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
- 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.
What the court decides
- 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
Family Law Facilitator
Napa Superior Court
825 Brown Street
Napa, CA 94559
(707) 299-1137
Neil.Bowman-Davis@napacourt.com