INTRODUCTION TO PROBATE GUARDIANSHIP



INTRODUCTION TO PROBATE GUARDIANSHIP

There are several avenues for determining custody of unemancipated minor children. These avenues include adoption, a dissolution of marriage case, a domestic violence proceeding, a paternity action for unmarried parents, a juvenile court dependency or delinquency action, a conservatorship action for gravely disabled minors, or a probate guardianship.

The law governing probate guardianship is found at Probate Code §1500 et seq.

A guardianship confers the right to custody and control of the child. It suspends the parents’ right to custody, but not their obligation to financially support the child.

WHO MAY PETITION

An adult or a minor 12 years or older may petition the court to appoint a guardian of the person or estate or both of one or more minor children. The petitioner need only show that a guardianship is “necessary and convenient.” A guardianship is necessary and convenient when the parents cannot adequately care for the minor, there is an adult willing and able to be the guardian and the minor has an established relationship with that person. If the minor is not the petitioner, the minor, if 12 or over, must consent to the guardianship.

It is not necessary to demonstrate that one or both parents are unfit. In fact, if the petitioner alleges either in the petition or during the course of the investigation that a parent is unfit, the probate court will refer the matter to the juvenile court for a possible dependency action. Then, the juvenile court will have precedence over the probate court.

If a parent objects, then the court has to determine that parental custody is detrimental to the child and that the guardianship is required to serve the best interests of the child. The petitioner should generally allege that parental custody is detrimental, but the pleadings should not specify the facts leading to this conclusion.

The petition must be accompanied by several other forms. Refer to the checklist on page 13 for the documents to file with the petition, as well as the other documents that must be provided later in the process. Be sure to also check the local rules for the filing county for any additional requirements.

A courtesy copy of all pleadings and papers must be provided to the Court Investigation Unit.

REQUIRED NOTICE

Notice of the filing of the petition as well as notice of the hearing must be served on relatives within the second degree, that is, parents, grandparents and siblings. The parents must receive personal service of the petition and notice of hearing. The other relatives can be notified by first-class mail. Relatives 12 or over must get notice in their own names. Notice to relatives under 12 may be sent care of the parent or guardian.

Notice must also be given to any other person with legal custody, or any person serving as guardian of the estate of the minor.

Notice must be given at least 15 days before the hearing, or 30 days if the relative is outside of the country.

If a person entitled to notice cannot be located with reasonable diligence, the petitioner may ask the court to dispense with notice. Reasonable diligence include asking friends, family, neighbors and known acquaintances; checking telephone directories or directory assistance; searching the county clerk’s records of real or personal property; sending a letter by regular mail to the last known address and marking the envelope “address correction requested.” If the person is in jail, you can check with the California Department of Correction and Rehabilitation’s online Inmate Locator at .

In guardianship of the person cases, the petitioner also has to give notice to the local county social services agency or the Director of Social Services in Sacramento or both. Relatives inform only the local agency. Non-relatives inform both the local agency and the State Department of Social Services. A "relative" means a person who is a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix "grand" or "great," or the spouse of any of these persons, even after the marriage has been terminated by death or dissolution.

In San Francisco, notice is given to:

Program Director, Permanency Program

San Francisco Human Services Agency

P.O. Box 7988

San Francisco, CA 94120-7988.

In Alameda County, notice is given to:

Child Protective Services, K-230

P.O. Box 1769

Oakland, CA 94604-1769.

The state agency is:

California Department of Social Services

Adoptions Services Bureau

744 P Street

Sacramento, CA 95814.

Check the local rules for what documents to send along with the petition and notice of hearing.

If the child has Native American ancestry, also check the special notice provisions of the Indian Child Welfare Act at Probate Code §1460.2.

If the proposed ward is entitled to benefits from the Veterans Administration, mail notice to the local Office of Veterans Administration.

If the proposed ward is a patient in or on leave from a state mental health institution, mail notice to:

Director of Mental Health

1600 9th Street, Room 151

Sacramento, CA 95814

Director of Developmental Services

1600 9th Street

P.O. Box 94402

Sacramento, CA 94244-2020

INVESTIGATION

There will be an investigation of the social history of the proposed guardian and ward before the court grants the petition. If the petitioner is a relative (including adopted or step), the investigation will be performed by the court investigator. Non-relatives will be investigated by a county agency. The report is confidential and will be available only to parties or their attorneys.

The local social services agency will screen the proposed guardian for prior referrals of abuse or neglect.

HEARING

There will be a hearing on the petition. The petitioner and the minor must attend the hearing. The proposed guardian will have to watch a short video on his or her responsibilities. If the investigation is not completed by the time of the first hearing, the court will continue the hearing and appoint the guardian only through the date of the continued hearing.

Come to the hearing with a proposed order and letters.

PERIODIC STATUS REPORTS

The guardian must file annual status reports, beginning no later than one month after the anniversary of the order appointing guardian. No court appearance is necessary if the status report is filed before the due date.

TERMINATION OF GUARDIANSHIP

The guardianship terminates by operation of law once the minor turns 18 or dies. Alternatively, interested persons may petition the court to have the guardianship terminated before the minor turns 18. If there is a guardianship of the estate, the guardianship may continue for one more year for the purposes of settling the accounts or for any other purpose incident to the enforcement of the judgments and orders of the court.

TEMPORARY GUARDIANSHIP

The petitioner may ask the court to appoint a temporary guardian if there is an emergency that cannot wait until the hearing on the general guardianship. There must be a petition for general guardianship on file before the court will entertain a petition for temporary guardianship.

GUARDIANSHIP QUESTIONNAIRE

1. Guardianship of the ( person or ( estate or ( both of

2. Guardianship by ( relative (Specify ________________________) ( non-relative

3. Information on the child who you wish to petition for (called the “ward”)

|Name of Ward | |

|

|Date and place of birth | |

|

|Name, Address, & Phone Number of | |

|School | |

|

|Grade in school | |

|Ward’s SSN | |

4. Notice of the guardianship petition must be sent to these people:

|Relation |Name |Address |

|

|Mother | | |

|

|Father | | |

|

|Maternal Grandmother | | |

|

|Maternal Grandfather | | |

|

|Paternal Grandmother | | |

|

|Paternal Grandfather | | |

|

|Sibling 1 | | |

|

|Sibling 2 | | |

|

|Sibling 3 | | |

|

|Sibling 4 | | |

|

5. Minor's address for last five years

|Dates |Name and relationship of person lived with |Address |

|Fr To | | |

|

| | | |

|

| | | |

|

| | | |

|

| | | |

|

| | | |

|

6. Information about proposed guardian

|Complete Legal Name | |

|

|Date of birth | |

|

|Address and phone | |

| | |

|

|California D.L. or ID number | |

|

|Social Security Number | |

|

|Height, Weight, Eye Color | |

|

|Hair | |

|

|Ethnicity | |

|

|Education | |

|

|Employment* address and telephone number | |

|

|# Bedrooms in house | |

|

|Sleeping arrangements for ward** | |

|

|State of health | |

|

|Info on any misdemeanor or felony arrests; | |

|nature of offense; date(s); county | |

b. Information about co-guardian, if more than one person wishes to be appointed guardian.

|Complete Legal Name | |

|

|Date of birth | |

|

|Address and phone | |

|

|California D.L. or ID number | |

|

|Social Security Number | |

|

|Height, Weight, Eye Color | |

|

|Hair | |

|

|Ethnicity | |

|

|Education | |

|

|Employment address and telephone number | |

|

|# Bedrooms in house | |

|

|Sleeping arrangements for ward | |

|

|State of health | |

|

|Info on any misdemeanor or felony arrests; | |

|nature of offense; date(s); county | |

7. Information needed for all adults 18 and over who live in proposed guardian's home

|Complete Legal Name | |

|

|Date of birth | |

|

|California D.L. or ID number | |

|

|Social Security Number | |

|

|Height, Weight, Eye Color | |

|

|Hair | |

|

|Ethnicity | |

|

|Relationship to Guardian | |

|

|Complete Legal Name | |

|

|Date of birth | |

|

|California D.L. or ID number | |

|

|Social Security Number | |

|

|Height, Weight, Eye Color | |

|

|Hair | |

|

|Ethnicity | |

|

|Relationship to Guardian | |

|

|Complete Legal Name | |

|

|Date of birth | |

|

|California D.L. or ID number | |

|

|Social Security Number | |

|

|Height, Weight, Eye Color | |

|

|Hair | |

|

|Ethnicity | |

|

|Relationship to Guardian | |

|

8. Does ward have any significant amount of money or other property? ( YES ( NO

9. Is ward entitled to veteran’s benefits? ( YES ( NO

10. Are there other court proceedings affecting ward? ( YES ( NO

11. Is proposed guardian a licensed foster parent? ( YES ( NO

12. How is proposed guardian related to or knows minor? ____________________________

13. Person having legal custody is ______________________________________________

14. Has minor, proposed guardian, or other adults in the home had any police or Child Protective Services involvement? ( YES ( NO

Specify ________________________________________________________________

15. Is there a social worker, probation or parole officer supervising you or any member of your household?

If yes, explain the circumstances

16. Is minor an Indian child? ( YES ( NO

If yes, the Indian Child Welfare Act, Probate Code §1460.2, applies. See that code section for additional notice requirements.

INFORMATION FOR DECLARATION OF PROPOSED GUARDIAN

|1. Need for guardianship including the specific reasons why the parents are unable to care for the proposed ward and whether they consent to the |

|guardianship? |

|

|2. Statement re development of ward, indicate with whom ward has resided since birth, and any special emotional, psychological, educational, or |

|physical needs of the ward and the guardian's ability to provide for such needs. |

|

|3. The anticipated amount and source of any financial support of the ward. |

|

|4. Any arrest record of the guardian and each person who will reside in the guardian's home, including the nature of the offense, date, place, and |

|disposition. |

|

|5. Any pending proceedings in Juvenile Court involving the ward or any other persons who will be residing in the guardian's home, including date, |

|place, disposition. |

|

|6. Any prior contact by the ward, the guardian, and any persons who will reside in the guardian's home with Child Protective Services or the |

|Department of Social Services. |

|

CHECKLIST OF DOCUMENTS FOR

GUARDIANSHIP

Guardianship Pamphlet [GC-205]

Fee Papers:

Application for Waiver of Court Fees and Costs [FW-001]]

Order on Application for Waiver of Court Fees and Costs [FW-003]

or

Check payable to Clerk, Superior Court

Petition for Appointment of Guardian of Minor [GC-210]

Notice of Hearing [GC-020]

Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act [GC-120]

Confidential Guardian Screening Form [GC-212]

Consent of Proposed Guardian/ Nomination of Guardian/ Waiver of Notice and Consent [GC-211]

Proposed Guardian (file with Petition)

Mother

Father

Notice and Acknowledgment of Receipt [FL-117] or Proof of Personal Service [GC-020(P)] on

Mother

Father

If either parent does not sign the Waiver of Notice and the current address is known, either personal service or substitute personal service of the Notice of Hearing and Petition must occur.

Order Dispensing with Notice [GC-021]

Order Appointing Guardian of Minor [GC-240]

Proof of Personal Service of Order Appointing Guardian of Minor

Letters of Guardianship [GC-250]

Duties of Guardian [GC-248]

Confidential Guardianship Status Report [GC-251]

FOR TEMPORARY GUARDIANSHIP

Petition for Appointment of Temporary Guardian [GC-110]

Order Appointing Temporary Guardian [GC-140]

Letters of Temporary Guardianship [GC-150]

Get blank forms online at courts.forms.htm

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* Amount of income not necessary, but the court wants to know how proposed guardian plans to support the ward. See Prob. Code §12026.1g

** Indicate whether minor will have his/her own room or will be sharing a room with another member of the guardian's household, and if so, with whom.

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