A legal guardian assumes temporary responsibility for a child, generally until the child turns eighteen. In California, a legal guardianship is established when a court appoints an individual to care for a particular child and/or the child’s property. Although some guardianship cases are handled in dependency court, the majority of guardianship cases actually take place in probate court.
How does legal guardianship differ from adoption?
Adoption permanently terminates the rights of a child’s birth parents and places those rights with a new parent or set of parents. In contrast, legal guardianship of a child only suspends certain rights of the parents temporarily and vests those rights in the appointed guardian instead.
Significantly, adoptive parents remain the legal parents of the child even into adulthood and beyond death. This is very different from guardianship. Legal guardians lose both their authority and responsibilities when the guardianship automatically terminates when the child turns eighteen, is adopted, marries, or dies. Courts may terminate a guardianship for other reasons as well: for example, when the child, guardian or parent successfully petitions for the court to terminate the guardianship, the court finds the guardianship is no longer necessary, or the court finds the guardianship is no longer in the best interest of the child.
What are the rights and obligations of a legal guardian?
Under legal guardianship, certain parental rights are suspended and vested into the guardians. These rights include the parents’ rights to physical and legal custody of the child. These rights, now vested in the guardian, impose the obligation as well as the authority to make decisions for the child normally made by a parent. Such decisions concern, for example, education, medical treatment, and general supervision.
Of course, there are certain limitations to the power of the guardian. For example, if the guardian wants to move the child out of California, the guardian must first get court approval. The guardian would also need court approval to permit the child to marry. Nonetheless, guardians have extensive powers, such as authority to consent to the child’s enlistment in the armed services, a decision that may follow the child well past the age of eighteen.
These rights and obligations can become a double-edged sword in some instances. For example, a guardian can give consent for the child to get a student driver’s license, but in doing so the guardian accepts both the obligation of paying for car insurance as well as any civil liability arising out of the child’s negligent and even intentional acts behind the wheel.
Are there different kinds of legal guardianship?
The time between filing a petition for general guardianship and a court hearing to decide the issue is generally six to eight weeks. That means that in many cases the child is without a much-needed guardian for two months. The solution to this predicament is a temporary guardianship. Temporary guardianship petitions are heard approximately five days after filing. Thus, when circumstances require the child to have a guardian as soon as possible, it is critical to file a petition for temporary guardianship simultaneously with the petition for general guardianship. The result of this double filing is that the child, instead of waiting in limbo, has a guardian appointed within a week on a temporary basis (provided the hearing goes well) until the date of the general guardianship hearing.
In situations such as where a child’s parent has a life-threatening condition and wishes to share authority and responsibility for the child with another person without terminating their own parental rights, joint guardianship provides this option. In establishing a joint guardianship, the parent is not suspending his or her own parental rights, but rather sharing the authority and obligations with a third party. This third party, the guardian, will then be able to step in if or when the parent becomes too ill to care for the child.
Is legal guardianship right for me?
If you find yourself in a position in which you take care of someone else’s child, but find you run into problems due to your lack of authority in making decisions for the child, you should consider petitioning to become the child’s legal guardian. Depending on whether or not it is necessary to be appointed in less than two months, you might additionally consider a simultaneous petition for temporary guardianship. The individual petitioning to be appointed guardian is often a grandparent or other relative, but it’s worth noting that both related and unrelated guardians may be eligible for financial assistance.
If you care for a child only on occasion when the parent is dangerously ill, you and the parent should consider petitioning to be joint guardians so that you can avoid issues that arise when the parent becomes too ill to continue caring for the child.
Guardianship is appropriate when individuals are only seeking to suspend, not terminate, the parents’ decision-making rights for their child so that they themselves have the powers and duties over the child’s care. If the individuals are seeking to terminate the parent’s rights and become the child’s legal parents instead, then they should be looking into adoption. You can find out more about adoption and its different variants in our previous article: Independent vs. Agency Adoption: Which Is Best For Your Family?