Becoming a child’s legal guardian is a serious undertaking in California. There are legal qualifications that must be met before the court will consider guardianship of a child and complex responsibilities that come with the designation.
If you are considering being a legal guardian in California, the following is an overview of guardianship in the state. For case-specific information, contact an experienced San Francisco custody attorney near you.
Legal Guardianship in California
In California, a court may appoint you as the legal guardian of a child when:
- The parent or parents are unable or unwilling to exercise their parental rights; or
- The parents voluntarily consent to the guardianship.
To do so, there must be clear and convincing evidence that your appointment as a guardian is in the best interest of the child. If you are appointed as the legal guardian of a child, you will have the authority and obligation to make decisions affecting the care, education, medical treatment, and supervision of the child.
Establishing guardianship temporarily suspends the parents’ rights to the care, supervision, and custody of their child. However, the parents may still have visitation rights and an obligation to pay child support to you.
Elements Required for a Legal Guardianship
Two elements must be met before a court will establish legal guardianship. The court must find the following:
- Granting custody to a parent would be detrimental to the child; and
- Granting custody to you as the legal guardian would serve the best interest of the child.
Granting custody to the child’s parents may be detrimental when both parents:
- Have a serious physical or mental illness;
- Are serving in the military and are going overseas;
- Are suffering from substance abuse and must go into a rehabilitation program;
- Have been convicted of a crime and will be serving time in jail;
- Are dead or missing;
- Have a history of child abuse or neglect; or
- Cannot take care of their child for some other reason.
Both of the above elements must be met to appoint you as the legal guardian of the child.
Who Can Be Designated a Legal Guardian?
California permits the court to designate a relative or any other person to be the legal guardian of a child. A parent or parents may suggest you or another guardian to the court. The court does not have to follow parental nominations but may consider them.
A child of twelve years old or older may petition the court for the appointment of a particular guardian. The judge will take the child’s preference for a legal guardian into consideration, investigate the nominee’s competence and suitability to be a legal guardian.
A parent can nominate a guardian through a will and testament. The courts are not required to appoint the named guardian unless it is in the best interest of the child.
What are the Rights and Responsibilities of a Legal Guardian?
When you become the legal guardian of a child’s person and estate, you take on numerous rights and responsibilities. These include, but are not limited to:
- The child’s residence. You must ask the court’s permission if you choose to move out of state;
- The child’s education;
- The medical and dental care of the child;
- Any counseling and mental health needs of the child;
- Permitting the child to get a driver’s license and ensuring they have car insurance;
- Giving the child permission to enter the military;
- Giving the child permission to marry;
- Paying or being responsible for harm or damages caused by the child;
- Following any parental visitation orders of the court;
- Protecting any assets the child owns as a fiduciary of the child’s estate; and
- Providing an accounting of any estate funds.
It is imperative you speak with an experienced guardianship and San Francisco family law attorney in detail regarding the rights and responsibilities of legal guardianship. There are fine points and stipulations on which a legal professional can offer greater clarification.
Contact an Experienced California Guardianship Attorney
Becoming a child’s guardian is a complex and serious undertaking laden with legal intricacies. Ask your guardianship questions and address your concerns before taking legal action to become a child’s guardian.