Wednesday, August 27, 2014

Guardianships

What is a Guardianship?

Guardianship is a court process in which someone other than a parent is given custody of a child or when a parent or other person is given authority over a child's property. The child, called the minor or ward, must be under the age of 18. A legal guardian is an adult the court chooses to be responsible for, and to care for a child, to manage the child's property, or both.

A guardianship of the estate allows the guardian to make financial decisions for a child, and is often filed when a minor is to receive a large monetary gift or inheritance.

Both parents and non-parents can become guardians of the person and/or the estate for children.

Are There Alternatives to Guardianship?

As an alternative to a guardianship, a Caregiver's Authorization Affidavit - external link may be completed. This form allows a relative to enroll a child in school and get medical treatment.

In lieu of a guardianship of the estate, you may ask the court to require the funds to be placed into a blocked account. Once the funds are placed into the blocked account, withdrawals are allowed only with prior court approval.

Where Should I File for Guardianship?

A Petition for Guardianship may be filed:

If there are prior family law custody orders or guardianship orders involving the minor, a petition for modification of those orders should be filed in the county where the orders were issued. Failure to file a petition where such orders exist may result in dismissal of your case. (See Probate Code §2203 - external link and Greene v. Superior Court (1951) 37 C2d 307)

If a minor does not reside in Sacramento County or has just recently moved to Sacramento County, a party to the proceeding such as a parent, sibling over the age of 12, or grandparent may petition the court to transfer the case to the county where the minor resides.

In addition, Sacramento County may not be the best county to file a petition for guardianship if the minor does not reside in the county. The Probate Court typically requires the preparation of a report and recommendation on the petition before it will make a determination. (See Probate Code §1513 - external link) If the minor is not a resident of Sacramento County, the case will take additional time to process. Court staff will attempt to obtain an investigative report from the appropriate authorities in the county where the minor resides. However, if the court cannot obtain the report, the court may require the petitioner to arrange for and to bear the expense of retaining a qualified social worker to investigate and prepare a report for the court's review and consideration.

In order to file a Guardianship petition in California, the child must reside in the state for at least six months before the petition is filed.

How Do I File for Guardianship?

In order to apply for appointment of a permanent guardianship, you must complete and file the following forms packets:

When all of the forms are complete, they may be filed at the Probate filing counter, Room 214 (second floor) of the William R. Ridgeway Family Relations Courthouse. The clerk will review the forms to ensure that they have been filled out completely before accepting them for filing.

When you file your forms, you will be required to pay a filing fee. If you are unable to pay the filing fee, you may be able to request a waiver of the filing fee. See our Fee Waiver page for more information.

What Can I Do if the Child's Health or Safety is in Danger?

If an emergency exists, contact Child Protective Services - external link (CPS). If the child is safe, but you believe that irreparable harm will result if immediate action is not taken by the court, a temporary guardianship may be appropriate. A temporary guardianship enables a person to have legal guardianship of a child prior to the general guardianship hearing. It cannot be filed separately from a guardianship. A petition for temporary guardianship must be filed after the petition for general guardianship. A Petition for Appointment of a Temporary Guardian should include detailed information about the present danger to the child, including copies of any existing police reports, CPS recommendations, etc. There is a filing fee for the Petition for Appointment of Temporary Guardian.

In order to apply for temporary guardianship, you must complete and file the following forms:

Present the original and two copies of the forms to the court at the Ex Parte Calendar. Before filing a petition you should review California Probate Codes 2250 through 2258 - external link so that you are aware of your responsibilities.

What Help is Available?

For assistance with temporary guardianship or guardianship of the estate, you may consult a private attorney. The Sacramento County Bar Association operates a Lawyer Referral Service - external link that can help you find an attorney for a nominal fee.

View an informative video about how to apply for a guardianship.

The Judicial Council provides additional information regarding the guardianship process - external link.

What Happens After I File for Guardianship?

Once the Petition for Appointment of Guardian has been filed, the clerk will set the matter for hearing. The hearing will generally be set 45 days from the date of filing. Once you have been given a hearing date, it is your responsibility to serve the Notice of Hearing on all first and second degree relatives. Some relatives can be served by first class mail, but others, such as parents, must be personally served. If any relatives disagree with the proposed guardianship, they may file a written objection and express their objections at the hearing.

During the period of time from the filing to the hearing, a Court Investigator will complete a background investigation for each proposed guardian, for any adult living in the home where the minor will reside and for any person listed as a potential caregiver for the child. There is a fee for the investigation, which is not covered by the filing fee. Once the investigation is complete, the Probate Court Investigator will prepare a report for the judge. Copies of the report will also be provided to the proposed guardian and any other relatives who have filed a written objection. If you are representing yourself, you may also benefit from reviewing our additional information on Court Hearings.