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Couples often focus on the division of property and child custody issues during a divorce. Such a focus can deprive their children of the attention or care they need. Appointing a guardian during such times can prove critical to the well-being of the children.

Guardianship occurs when the parents of a child name the caregiver giving him or her certain rights, such as caring for the child or managing the estate of the child. Both the guardian and the parents have certain legal rights and permissions assigned to them by the court. Understanding these rights is essential in preventing conflicts or violations of the law. You can also choose the best option for you between guardianship and adoption.

The San Diego Divorce Attorney helps divorcing or divorced couples in appointing a guardian for their children. The attorney also advises you on the options you have and your rights in each case.

Divorce and Guardianship 

Guardianship arises as part of the custodial negotiations in a divorce. When both parents do not decide on custody, the matter shifts to the court. In other cases, third parties such as grandparents or relatives of the child could raise concerns about the well-being of the child.

Such parties can request temporary or permanent guardianship, depending on the situation. For example, if the kids are suffering due to the divorce, then the grandparent can request to stay with the children.

In such a case, he or she has limited rights and cannot make decisions for the child. He or she may then choose to file for guardianship to get the rights and responsibilities of a parent.

When getting a divorce, you are less focused on what will happen to your children in case you or your partner dies. Note that guardianship is available to minors. Guardianship during a divorce is a part of your estate planning.

You can choose a guardian to:

  • Take care of your children
  • Manage the child’s estate until he or she is at least 18
  • Take care of the child and manage the child’s estate

While it might turn out to be unnecessary, the move will guarantee you peace of mind. You know that the guardian will care for your children.

If you are the primary custodian of the child, the court automatically appoints the non-custodial parent as the parent after death. The only exception to this rule is when the parent is violent or mentally incapacitated and cannot serve the best interests of the child.

California recognizes two types of guardianship: probate and legal guardianship. Probate guardianship is the most common form in California. It refers to a situation where the party seeking guardianship or another party requests the court to appoint a guardian in probate court. In a probate guardianship, the party seeking to become the guardian requests the court order so that he or she can legally decide on behalf of the child.

Probate guardianship is usually of two forms based on the extent of the responsibilities you have. Guardianship of the person gives you similar responsibilities to the child as a parent would. In the guardianship of the estate, you are only responsible for managing the assets, property, and money of a child until he or she is 18.

Most parents go for guardianship of the person:

  • Where the parents are physically or mentally incapacitated
  • To seek treatment in a rehabilitation center
  • If the parent is incarcerated
  • If the parent has a drug and substance use problem
  • When the parent is traveling overseas
  • You have a history of abuse
  • You cannot take care of the child

On the other hand, legal guardianship occurs when a court order that charges a non-parent with the task of caring for a child in a juvenile dependency court. Guardianship awarded during a juvenile dependency court hearing arises if the minor is allegedly facing neglect or abuse from the parents.

The goals of the court are:

  • To protect children
  • To reunite families where possible
  • To provide permanent placement for the child if returning him or her to the biological or adoptive parents is harmful to the child.

In rare cases, however, courts award guardianship after terminating the parental rights of the parents. Instances that can lead to the termination of parental rights include:

  • Abandoning the child by failing to support or keeping contact with the child
  • Sexually abusing the child
  • A history of abusing children in the family
  • Long-term mental incapacity
  • Long-term incapacity resulting from drug and alcohol abuse
  • A conviction for the murder of the child's parent
  • You signed an agreement to terminate parental rights

If you or the court terminates your parental rights, you lose visitation rights in guardianship. In addition, you cannot make any decisions as a parent to the child.

Guardianship is usually for children under 18. It differs from adoption in that:

  • The parents retain their parental rights and can request reasonable contact with the child
  • The court can terminate the guardianship
  • The court can supervise the guardian

Before awarding guardianship, the court will evaluate the situation that meets the best interests of the child. These interests include providing safety, love, and stability for the child to grow up.

Guardianship can also be permanent or temporary. Temporary guardianship occurs when the parent or court chooses a guardian for the child during the time he or she cannot be with the child, for example, due to incarceration.

Permanent guardianship occurs after death or if the court determines that the parent is not a good fit for the child.

Appointing a guardian

Most people informally appoint guardians; others assume guardianship of the child after the death or separation of parents. However, without a legal agreement or court order, you do not have the authority to make some decisions over the child.

Even if you leave your children under the guardianship of your sister or mother, it is wise to make a legal statement detailing the decision, and where needed, the explanation.

If your children are in their teens, you could ask them about their preferences with the potential candidates. Note that the children might request the court to appoint a different guardian to the one you chose. If they are older, the court might change the guardian.

The court will appoint a guardian if you do not choose one, or the court decides that you are not a good fit for minor children.

Choosing a guardian is a significant step because the guardian takes your responsibility as a parent temporarily or permanently. Here are some of the rights and responsibilities of a guardian will have:

  • Guardians are responsible for choosing the primary residence of the child. However, the guardian must notify the court if he or she moves or intend to move. Guardians must also get the court’s permission before moving out of California. The guardian must live with the child unless the court allows the child to live with the parents.
  • The guardian has the responsibility of providing for the educational needs of the child including choosing the school and appointing tutors
  • He or she must provide for the medical and dental needs of the child including deciding on the medical treatment the child should receive
  • The guardian must be ready to provide for the mental health needs of the child, including counseling and therapy. However, he or she must obtain the permission of the court or consent of the child to place him or her in a mental health institution
  • Guardians must submit a status report with the court annually and adhere to any court regulation and additional responsibilities.
  • The guardian will be responsible for any damages arising from the intentional acts of the child or negligent supervision
  • The guardian can allow the parents to visit the child following a visitation schedule set by the guardian or the court
  • The court can terminate the guardianship and restore custodianship to the parents if need be
  • Guardians can permit the child to obtain a driver’s license. if the guardian allows the child to have a driver’s license, he or she must also provide insurance
  • The guardian can allow the child to join the military if he or she wishes
  • Guardians must permit the child to get married if he or she wishes to. Marriage of the child ends the guardianship. The court also has to approve of the decision.
  • Guardians can also get social services for the child including programs such as California’s Children's Services
  • Guardians must provide financial support to the child

Unless the court appoints a guardian for you, you have the responsibility of ensuring that the guardian will serve the best interests of the child. He or she must meet several requirements or be of right standing. Here are some considerations to make when choosing a guardian:

  1. The financial resources the guardian has: the guardian will be responsible for the financial welfare of the child. Sometimes the guardian might need to spend your money to raise the child in situations where you delay or fail to pay child support. Other financial responsibilities of the guardian include paying for education, damages caused by the child, healthcare, and food. The guardian could also seek additional funding from social security and public assistance.
  2. The relationship with the relatives of the child: often, relatives can contest the person you choose to become the guardian of the child. In such cases, conflicts are bound to arise and could affect the effectiveness of the guardian. If the parents and relatives of the child are not supportive, then the guardian will have a hard time caring for your children.
  3. The readiness of the guardian’s family to embrace the incoming children: guardianship is a demanding task. It can put a toll on the guardian’s family. The guardian will spend a lot of time, resources, and energy in raising the children. You must determine whether the guardian’s family will be supportive of him or her.
  4. The willingness of the guardian to take legal responsibility for your child: a guardian will take your responsibilities as a parent. You must determine whether the guardian is willing to use his or her resources, time, and energy in caring for your child. In other cases, the guardian will have to take responsibility for your child's action – you must determine whether he or she is responsible for the duty. He or she must also be a person that can judiciously manage the child's estate.
  5. The reputation of the person including their integrity and honesty
  6. The criminal history of the guardian: conduct a background check on potential guardians. Evaluate the crime the person is convicted for (if any) and the impact it has on the person's ability to be a guardian.
  7. The health of the guardian: guardianship requires a lot of time and energy. You must evaluate the age of the person and his or her health. You should also examine the guardian’s physical ability to care for the child
  8. The relationship between the child and the guardian: a guardian who is well known to the children is often a better fit than a stranger is. The children can easily transition into the guardian’s care
  9. The values of the guardian: if values are important to you, then finding a person who conforms to similar beliefs and values will guarantee that your children are raised in the same way. For instance, if your religion is important to you and your parenting, finding someone from the same religion is important.
  10. The guardian should be a legal adult

If the court is appointing the guardian, it will evaluate the suitability of the person acting as the guardian. However, you can file a motion to object to the selection of a guardian.

Visitation after Guardianship

Unlike an adoption, guardianship does not terminate your parental rights. You can regain custody of your child or visit him or her. The court can order visitation, or you can plan it with the guardian.

Courts in California approach visitation and guardianship differently; however, the courts follow some basic principles when determining the best type of visitation to award. The court will also determine whether to award you visitation rights.

The court evaluates the role of the visitation in meeting the best interests of the child. For example, the court will determine whether visitation is important to the stability and well-being of the child.

The court will also evaluate the health and safety risks to which visitation would expose the child. For instance, if you have a history of domestic abuse and substance abuse, the court may decline your request for visitation.

You must file a petition with the court to request visitation. The court will hold a hearing with you and other concerned parties such as the guardian, and anyone who was part of the guardianship hearings.

If the court awards you visitation, you will come up with a visitation agreement with the guardian, or the court will design one for you.

Often, the best idea is to settle outside the court with the guardian. However, if you do not agree on a suitable schedule, then you have to go to court.

In some cases, the guardian will object to the visitation or request the court to cancel the visitation order. However, he or she must present evidence such as:

  • The children (depending on age) do not wish to meet you
  • You are abusive to the children
  • You are currently being investigated for a crime
  • Other reasons why the visitation is not in the best interests of the child

If visiting your children is essential for you, discuss it with your attorney about the best type of visitation to request. Some of the available types include:

  • Supervised visitation
  • Virtual visitation
  • Visitation based on a schedule
  • Reasonable visitation (not based on a schedule)

Sometimes, the court gives a “no visitation” order barring you from visiting the children or making contact with them.

Find a San Diego Divorce Lawyer Near Me

Guardianship can be a complicated area of law sometimes associated with divorce. The court or another person can raise the question of your appropriateness as a parent. Such a person can petition the court to award him or her guardianship of your minor children.

The court will thereby be at the discretion to approve or deny the request. In other cases, the court appoints a guardian if it finds that you are not suitable for the well-being of the children.

Even in a divorce where the parties agree on custody, choosing a guardian safeguards the future of the child should the parents be dead or unable to take care of the children.

Having an attorney for guardianship issues will help you navigate the applicable laws, file the necessary paperwork, and enforce some of your rights. For example, you can get a court order awarding you visitation.

If you are in the process of a divorce and are planning your estate, San Diego Divorce Attorney will guide you through the process to ensure that you include everything, including a guardian. Contact us at 858-529-5150 if you have any questions about guardianship and divorce in California.


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