Guardianship of a Minor
Guardian of a minor child
If you have minor children, naming a guardian for them is one of the most important considerations in your will. Typically, if one parent dies, the surviving parent will remain responsible for the children.
However, complications arise if both parents die simultaneously or if one parent remarries. Unless you name guardians for your minor children in your will, the court decides who takes custody of the children in those situations.
If you have a spouse who is legally the mother or father of a child, then in most cases you should appoint the spouse as guardian. If you choose to appoint someone else, the court will balance your desires with the best interests of the children. For example, if you remarry and want your current spouse (and not the child’s natural parent) to be the guardian, you may want to state your reasoning on why your current spouse would be better for the children. A Will gives you the option to write these instructions in the Special Directives Clause.
In California, a guardian is a person other than a child’s biological parent who accepts legal responsibility for a minor child. Guardianships are common in two circumstances: The first is upon the death of the child’s parents. The second is when the person who wants to be the child’s guardian does not believe that the child’s parents are taking proper care of the child. Recognizing the importance of guardianships, California has produced standard fill-in-the-blank guardianship forms, making the process of requesting guardianship a straightforward one as compared to other types of cases.
Filing the Guardianship Paperwork
Obtaining legal guardianship begins with filing a petition for guardianship and other necessary paperwork. In California, you can file the paperwork at the Superior Court in the county where the child legally resides. There are usually less than a dozen papers that a person seeking guardianship must complete and file. All required documents are available free of charge through the court clerk’s office. Although the clerk cannot provide legal advice, the clerk is often willing to explain any specific procedures followed by your local court. You must pay a fee, which changes periodically, to file the guardianship documents. Consult with the clerk to determine the current filing fee. A fee waiver application is also available if you cannot afford the filing fee.
After filing your guardianship paperwork, a number of individuals must receive notice that you are asking the court to appoint you as the child’s guardian. The person who currently has legal custody of the child and the child, if 12 years of age or older, must receive a copy of the guardianship papers in person. The child’s siblings and grandparents must receive a copy of the paperwork by mail. Additionally, your county’s human services or social services department must receive a copy by mail, as does the California Department of Social Services if you are not related to the child. Because you are a party in the case, you are not allowed to deliver or mail copies of the paperwork. However, anyone 18 years of age or older and not associated with the case may deliver the papers. You must have the paperwork delivered within a specified period of time prior to the court hearing scheduled by the clerk. This deadline is usually outlined in the court documents. However, if you are unsure as to the time period, you can always ask the clerk. The purpose of the notice is to allow interested individuals the opportunity to contest your request.
The Court’s Investigation
Prior to the court hearing, a court investigator will contact you to schedule an interview. In some cases, the investigator may also want to interview the child. The investigator will likely visit your home and may review the child’s school and medical records. The investigator will also conduct a background check on you and any other persons you live with. At the conclusion of the investigation, the investigator will prepare a report for the judge in your case. The investigator will include in the report his recommendation as to whether the court should grant your request to be the child’s guardian. The judge is not bound by the recommendation of the investigator.
Attending the Court Hearing
After all the interested parties receive notice and the investigator’s report is finished, you must attend a court hearing. Guardianship hearings are fairly informal as compared to other case types. The judge will most likely have a conversation with you and may also hear from those persons who received notice of your request. The judge is concerned with the best interests of the child, rather than with your needs. It is important to bring an “Order Appointing Guardian of the Minor” form with you to the hearing. This form is available at no charge through the clerk’s office. If the judge appoints you as the child’s guardian, the judge will sign this form. You will then file the signed form with the clerk.
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