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  • 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

Neil Bowman-Davis

  • 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

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