Family Law - Juvenile Guardianship
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
Guardianship is not the same as adoption. It does not cut off the
childs 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 childrens education
or health care; instead, the childs social worker or the juvenile
court judge makes these decisions.
Also, once there is a guardianship, the juvenile court may dismiss
the childs case, and a social worker or probation officer
will no longer be involved in the childs 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 courts role in these cases
is to ensure that the child is safe, decide where the child should
live, and make a plan for the childs future. This is called
a dependency case.
In some situations, a child may get into trouble with the law. The
juvenile courts 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
childs legal guardian. Some of the benefits of guardianship
- 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.
The guardian can choose the childs school and educational
program. The guardian should pay attention to the childs
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 Childrens
Services (for children with disabilities), and after-school programs.
· Childs 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
If the guardian gets aid for the child, the county may try to
collect child support from the parents.
Both the court and the guardian must consent to a childs
· Armed Services
A guardian can consent to the child's enlisting in the armed services.
· Driver's License
For a child to get a drivers 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 childs license.
· Childs Misconduct
A legal guardian, like a parent, has a duty to supervise the childs
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 childs 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 childs
legal guardian, you should talk to the childs 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 childs
What will the
juvenile court do?
How the judge handles your request to become a childs 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 childs 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 childs
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 relatives 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 childs 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
childs 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 childs 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 childs guardian, you will
need to fill out some legal forms. Then the childs 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 childs 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 childs
guardian, you will get a copy of the court order and the letters
of guardianship. This is your legal proof that you are the childs
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 childs
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 childs
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 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.