Guardianships

• 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