Guardianship is a court proceeding in which a judge gives someone who is not the parent:
- custody of a child, or
- the power to manage the child's property (called "estate"), or
There are two types of Guardianship
- Guardianship of the Person which means the guardian has custody of the child.
- Guardianship of the Estate which means the guardian manages the child's income, money or other property until the child turns 18.
But, if Child Welfare Services (CWS) is involved in your case, you probably have to go to the juvenile court to find out what you can do. You can find more information on juvenile court here.
Guardianship: Frequently Asked Questions
No. Here are some differences:
In a Guardianship:
- Parents still have parental rights.
- They can have reasonable contact with the child.
- The Court can end a guardianship if the parents become able to take care of the child.
- Guardians are supervised by the court.
In an Adoption:
- The parents' rights are permanently ended.
- The legal relationship with the adopted parents is permanent and is exactly the same as a birth family.
- An adopted child inherits from his or her adoptive parent(s), just as a birth child would.
- Adoptive families are not supervised by the court.
For the most part, the guardian has the same responsibilities as a parent. That means the guardian has full legal and physical custody of the child. The guardian is responsible for the child's care, including the child's:
- Food, clothing and shelter
- Safety and protection
- Physical and emotional growth
- Medical and dental care
- Education and any special needs
- The guardian may also be responsible for the child's behavior and any damage the child may cause.
Sometimes, no matter how much parents love their child, they aren't able to take care of their child. Maybe one or both parents:
- have a serious physical illness,
- are in the military and have to go overseas,
- have to go to a rehab program for a while,
- are going to jail for a while,
- have a drug or alcohol abuse problem,
- have a history of abuse, or
- can't take care of their child for some other reason.
The court will look at what is in the best interest of the child to make sure the child is raised in a safe, stable and loving environment. A legal guardian can care for a child when the parents aren't able to.
Relatives, friends of the family, or other people can ask to be legal guardians.
Yes. If the child is 12 or older, s/he can ask the court to appoint a guardian.
A guardianship of the estate is set up to manage a child's income, money, or other property until the child turns 18. A child may need a guardian of the estate if s/he inherits money or assets. In most cases, the court appoints the surviving parent to be the guardian of the child's estate.
In some cases the same person can be the guardian of the person and of the estate. In other cases, the court will appoint two different people.
The guardian of the estate's must:
- manage the child's money,
- make smart investments, and
- manage the child's property carefully.
A guardianship of the estate is created to manage a child's property. It is needed when: the child owns or receives a lot of property, like if a child inherited a house or a large amount of money.
A guardianship of the estate is not needed when:
- a child only owns inexpensive toys and clothing,
- the child receives social security benefits or TANF/CalWorks (welfare)
If you aren't sure if a guardianship of the estate is needed, talk to a private attorney.
Petition for the Guardianship of the person only is $205, Guardianship of person AND estate is $355. For the current fees for filing a guardianship of the person or a guardianship of the estate, please see the current fee schedule for San Benito County Superior Court, which can be found here.
If you are low-income, you may be able to qualify for a fee waiver and not have to pay a filing fee. Fee Waiver forms and information can be found here.
If you are applying for a guardianship of the person and are related to the child you are asking for guardianship of, there may also be a fee for the guardianship investigation. A guardianship investigation is performed by the Probation Department a month or two after the guardianship petition is filed. A guardianship investigator will visit you, walk through your home, and ask questions about why the guardianship is needed. The investigator will then file a report with the court regarding whether the guardianship is appropriate. This fee can be several hundred dollars, but you may be eligible for a reduced fee or a payment plan if you are low-income. Payment arrangements must be made with the Probation Department, not the court.
The Civil Self-Help Center can assist you with completing the paperwork to ask the court for Guardianship of the Person of a minor child.
You can pick up the forms you will need to ask the court for a guardianship of the person at the courthouse for a fee. If you need assistance with completing the forms to ask for guardianship, or have any questions, please contact the Self-Help Center to make an appointment by phone at (831) 636-4057.
Please note that the Civil Self-Help Center assists with guardianships of the person of minor children only. The Civil Self-Help Center does not assist with guardianships of the estate of a minor or conservatorship of adult.