What is a Legal Guardian Under California Law?

Many kids in California have legal guardians – people who are not their biological parents but are responsible for caring for them. Legal guardians are different from adoptive parents for a few reasons, but they have many of the same rights and responsibilities as adoptive parents do.

What is a Legal Guardian Under California Law?

A legal guardian is someone other than a biological parent who has legal custody of a child (or children) in the state of California. The courts are very thorough when determining whether they should give legal custody of a child to someone other than a biological parent, and typically, it only happens when the biological parent(s) are unable to care for the child because of:

• Alcoholism
• Death
• Deportation
• Domestic violence
• Drug addiction
• Illness
• Incarceration
• Military duty overseas
• Profound financial issues

The court may find another circumstance that makes the parent unfit or unable to care for the child, but these are the most common reasons someone other than a biological parent gets guardianship of a child.

Can People Apply for Guardianship?

People can apply for guardianship of a child. However, the person requesting to become a child’s legal guardian must prove by clear and convincing evidence that it’s in the child’s best interest. (You can’t apply for guardianship simply because you don’t like the way the child’s biological parent is raising the child.)

California Family Code 3041 says, “Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.”

The Differences Between Legal Guardians and Adoptive Parents

When someone becomes a child’s legal guardian, the child’s parents may retain their parental rights. The court can award visitation with the child, and the guardianship can be terminated when the parent’s situation improves. A guardianship can be supervised by the court, as well.

California courts would rather keep a child with his or her natural parents when it’s possible and good for the child.

In an adoption, the parents lose parental rights to the child forever. They don’t have rights to visitation or to have any type of relationship with the child. Parents can’t get those rights back, either, and adoptive families aren’t supervised by the courts.

Facts on Legal Guardians

Only a court can appoint a legal guardian – it’s a legal relationship. The court can name someone through the juvenile dependency court, which usually involves Child Protective Services, or the court can appoint a family member, friend, foster parent or other non-parent who petitions to become the child’s guardian.

Do You Need to Talk to an Attorney About Guardianship Issues?

If you need to talk to a Stockton family law attorney about legal guardianship, or if you have questions about what it means to be a legal guardian, we may be able to help you. Call us at 209-910-9865 to schedule your consultation with an experienced lawyer today.