A guardianship is simply a custody order giving someone custody rights over a minor. It is important to point out that a guardianship does not mean a parent gives up permanent rights over their child. By issuing a guardianship, the court is legally recognizing that this other person has responsibility for taking care of a minor. Some people mistakenly believe that an informal agreement is enough to appoint someone a guardian. A guardian can only be appointed by the courts, which means in order for it to be legally effective, there must be a court order.
TWO TYPES OF GUARDIANSHIPS
In California there are two types of guardianships: Guardianship of (1) the person and of the (2) estate. Guardianship of the person means you are responsible for taking care of that person. This of course includes food, health, education, welfare, medical treatment and overall well being. Guardianship of the estate means responsibility for property such as money, stocks, real estate, etc. It is possible to be a guardian for a minor’s estate, person, or both. Obviously, most minors do not have substantial assets so this differentiation is usually not important.
DURATION OF THE GUARDIANSHIP
When the court appoints a guardian, it lasts until the minor’s 18 th birthday. Probate Code §1600(a). This termination of the guardianship is automatic when the minor turns 18 years told. A guardianship can be terminated upon a showing of good cause, meaning it is no longer in the best interest of the child to have a guardian. If the biological parents are in a position to raise their child, the court can end the guardianship and grant visitation rights to the former guardian. Probate Code §1602
TEMPORARY GUARDIANSHIP AND MINOR’S RIGHTS
In urgent situations, you can bring a motion for a temporary guardianship. These situations usually include some type of imminent danger to the child such as parental drug use. The filing party would bring an ex parte motion for a guardianship which would either be granted or denied, pending the determination for the permanent guardianship.
Once the child has been residing with the non-parent for long enough to build a bond, then removal of the child may infringe on the child’s fundamental right not to have that relationship and placement disturbed; this right supersedes parental custody rights. See In re Bridget R. (1996) 21 CA4th 1483. If removing the child would be detrimental to the child’s health, safety or welfare, then the court likely will not return the child to the biological parent. The child’s rights are more compelling than those of adults. In a nutshell, it all comes down to what is in the best interest of the child. So, if a court determines it is in the best interest of the child to return to the biological parents, then that is exactly what would happen.
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