Unlike adoptions, a guardianship does not terminate the birth parents' parental rights and does not create a new parent-child relationship with all the rights and responsibilities of that relationship. However, the use of a guardianship can be a method of obtaining the legal custody of a child.
A guardian may be appointed for a minor whenever it appears to the court that it is "necessary or convenient" to do so. Since a guardianship does not terminate the birth parents' rights, the court's power to appoint a guardian under the broad "necessary or convenient" standard is subject to the birth parents' constitutional protection. However, once the court establishes the guardianship, the guardian, not the parent, has the right to custody of the child. Also, once the permanent guardianship has been established, the guardianship continues until terminated. Termination of the guardianship occurs when the court so orders or when the ward attains the age of majority, is adopted, becomes emancipated or dies.
In appointing a guardian of the person of a minor, the court must apply the "best interest test" and apply the order of preference of Family Code Section 3040. The order of preference is as follows:
- To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
If you are considering seeking appointment as a guardian, would like to nominate a guardian for your children, or would like more information, please contact KIRK & SIMAS or schedule a consultation today. Our experienced team of family law and estate planning attorneys, law clerks and paralegals are help you with all your legal needs.
|
LINKS TO:
Family Law Department FAQ List Questionnaires Resource List Attorneys & Staff |
Contact KIRK & SIMAS with your family law questions or schedule a consultation today.
|
