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Family Law - Juvenile Guardianship

> What is a legal guardianship?
> How is guardianship different from adoption?
> How is guardianship different from foster care?
> Who are legal guardians?
> When does a child need a legal guardian?
> If the child already lives with me, do I need a legal guardianship?
> What are the rights and responsibilities of legal guardians?
> What do I do if I want to become a legal guardian for a child in juvenile court?
> What will the juvenile court do?
> Is financial assistance available for legal guardians?

Are you thinking about becoming a legal guardian of a child who has a case in juvenile court? The information in this section discusses the rights and responsibilities of a legal guardian and how to become one. Only general information is provided. If you want more information or have questions, you should talk to an attorney.


What is a legal guardianship?

A legal guardianship is a court order that makes an adult other than a parent responsible for the care of a child. A legal guardian has many of the same rights and responsibilities as a parent, such as deciding where the child will live, enrolling the child in school, and making health-care decisions.


How is guardianship different from adoption?

Guardianship is not the same as adoption. It does not cut off the child’s ties to the parents forever. Guardianship just changes the custody of the child from the parents to the guardian. The child and the parents are still legally related. The parents still have a legal duty to support the child financially. The child can still inherit money and/or receive social security benefits from the parents.

Guardianship can last until the child becomes an adult at age 18. However, the court can end a guardianship and return the child to the parents or appoint a new guardian. The court can also order visitation with the parents or other relatives as part of a guardianship.


How is guardianship different from foster care?

Foster care is supposed to be temporary. Foster parents have fewer rights and responsibilities than legal guardians. A foster parent cannot make major decisions about the children’s education or health care; instead, the child’s social worker or the juvenile court judge makes these decisions.
Also, once there is a guardianship, the juvenile court may dismiss the child’s case, and a social worker or probation officer will no longer be involved in the child’s life.


Who are legal guardians?

A guardian can be either a relative or a non-relative. Aunts and uncles, grandparents, foster parents, friends of the family, or someone else who knows the child could become legal guardians.


When does a child need a legal guardian?

Every child needs a stable and permanent home. In some situations, parents cannot care for their child or the child is in danger of abuse or neglect. The juvenile court’s role in these cases is to ensure that the child is safe, decide where the child should live, and make a plan for the child’s future. This is called a dependency case.

In some situations, a child may get into trouble with the law. The juvenile court’s role in these cases is to decide where to place the child and for how long, and to put the child on probation if necessary. This is called a delinquency case.

In both dependency and delinquency cases, some children may be placed in foster homes. Often, children end up being adopted, but sometimes adoption is not possible. For these children, a legal guardianship may be the best way to provide a stable home.


If the child already lives with me, do I need a legal guardianship?
If you are already caring for a child, you may want to become the child’s legal guardian. Some of the benefits of guardianship are:

  • Stability and permanence;
  • Possible financial aid and medical benefits; and
  • Ability to get health care for the child, enroll the child in school, and make other important decisions.



What are the rights and responsibilities of legal guardians?

As a guardian, you are responsible for the care, custody and control, and education of the child.

· Health Care
The guardian can make many health-care decisions for the child. This includes consenting to most medical and dental treatments as well as mental health care (such as counseling or therapy). However, court approval is required for any non-emergency surgery if the child is 14 years or older and does not agree to it. In some instances court approval may also be required for the child to take certain medication.

· Education
The guardian can choose the child’s school and educational program. The guardian should pay attention to the child’s progress in school, attend meetings with the teacher, and so on. If a child has special education needs, the guardian should work with the school to develop and carry out an individualized education program (IEP) (see Special Education) for the child. In some situations, the court may also be involved in educational decisions for the child.

· Social Services

A legal guardian can request services for the child from programs such as Head Start, Regional Centers, and California Children’s Services (for children with disabilities), and after-school programs.

· Child’s Residence
The guardian has the right to decide where the child will live. If the guardian moves to a different city in California, the guardian must notify the court in writing. If the guardian plans to move outside California, the court must give approval first. (Also, different states have different laws about guardianship, so if you plan to move out of state, you should get information about guardianship laws in the new state.)

· Financial Support
The parents still have a legal duty to support their child financially even when there is a guardianship. A guardian can choose to support the child without any help. Or, if the guardian needs financial help, the guardian may be able to receive welfare, foster care payments, or other aid (see section called “Information for Guardians”). If the guardian gets aid for the child, the county may try to collect child support from the parents.

· Marriage
Both the court and the guardian must consent to a child’s marriage.

· Armed Services
A guardian can consent to the child's enlisting in the armed services.

· Driver's License
For a child to get a driver’s license, the guardian must give written consent. By signing the Department of Motor Vehicles (DMV) application, the guardian agrees to be responsible for any damages if the child causes an accident (up to a limit set by law). The law requires any parent or guardian who signs the DMV application to have insurance to cover the child driver. If the guardian later changes his or her mind about letting the child drive, he or she can sign another DMV form to request cancellation of the child’s license.

· Child’s Misconduct
A legal guardian, like a parent, has a duty to supervise the child’s behavior. If the child does something wrong, the guardian could be sued for any damage caused by the child. Talk to an attorney if you are concerned about possible liability.

· Other Responsibilities
The judge may also ask the guardian to agree to other responsibilities. For example, the judge may set up visitation times between the child and the child’s parents or siblings.


What do I do if I want to become a legal guardian for a child in juvenile court?

Once you understand the rights and responsibilities of becoming a legal guardian, you should think about whether you are able to take on these responsibilities. If you decide you want to be a child’s legal guardian, you should talk to the child’s social worker or probation officer. Or you could write a letter to the juvenile court judge. The letter should include your full legal name and address, your relationship to the child, and a brief description of how you know the child and why you want to be the child’s guardian.


What will the juvenile court do?
How the judge handles your request to become a child’s guardian will depend on the facts of the case, the needs of the child, and what stage the case is in.

For example, when a child is at risk of abuse or neglect and someone offers to be the child’s guardian right away, the child may not need to have an ongoing case in juvenile court. If the parents agree to the guardianship, the judge may appoint the guardian and dismiss the case.

A guardian also could be appointed at a later stage of a child’s juvenile court case. When a child is removed from home due to abuse or neglect, the judge makes an initial decision about where to place the child (usually in a relative’s home or foster home). Then the court holds hearings to review the case, at least every six months. At one of these review hearings, the court could appoint a guardian if the child cannot safely return home and adoption is not the best plan for the child. The child’s social worker makes a recommendation to the judge on what would be the best plan for the child.

In delinquency cases, there is a similar process for becoming a child’s guardian. The juvenile court must decide on the best placement for the child and can appoint a guardian if the child cannot go home to his or her parents. The child’s probation officer makes a recommendation to the judge on what would be the best placement for the child.

To start the process of becoming a child’s guardian, you will need to fill out some legal forms. Then the child’s social worker or probation officer will interview you, check your references, visit your home, and write a report for the court. You will get a notice about the date of the court hearing. You have the right to come to the hearing and to talk to the judge. The social worker or probation officer, the child’s parents and other relatives, and the child can also come to the hearing and give their opinions about the guardianship.

After the hearing, if the judge decides to appoint you as the child’s guardian, you will get a copy of the court order and the letters of guardianship. This is your legal proof that you are the child’s guardian, and you should keep it in a safe place and make several copies. You may need to show these papers to get health care for the child, enroll the child in school, etc.


Is financial assistance available for legal guardians?

Legal guardians who are related to the child can get cash aid (welfare) for the child even if the guardian is not needy. If the guardian is needy, he or she can get welfare as well. Some legal guardians can qualify for foster care payments, which are higher than welfare. Also, there is a new program called Kin-GAP (Kinship Guardianship Assistance Payment Program) that provides cash aid, at the same rate as basic foster care payments, to relatives who become legal guardians of children who have dependency cases in juvenile court.

If the child receives welfare, foster care payments, or KinGAP, the county may try to collect child support from the child’s parents.

If the child has a disability, he or she may also be eligible for social security supplemental security income (SSI) benefits or state disability benefits. A legal guardian can receive and use these payments to care for the child.

If you need financial assistance to care for a child, ask the child’s social worker or probation officer what kinds of benefits you could qualify for. (If you are considering adopting the child instead, you should ask about the Adoption Assistance Program.)

Legal guardians can get Medi-Cal for the child and for themselves if they are needy and are related to the child.

Guardianship
(Guardianship is a proceeding in which a judge gives someone other than a parent custody of a person under 18 years old (called a minor), or the authority to manage the minor's property, or both.)

There are two kinds of guardianships in California. Many guardianships are handled through probate courts. However, if a child is a dependent of the juvenile court, then only the juvenile court may appoint a legal guardian for the child.