The Uneven Playing Field of Guardianship

A probate guardianship is one of two statutory procedures by which the court may remove a child from parental custody whenever doing so is “necessary or convenient.”1 If the parents object to the proceedings, the court must find (1) that custody with the parents would be detrimental to the minor, and (2) that it would be in the best interest of the minor to live with the proposed guardian before a petition for guardianship can be denied or terminated.2

Parents whose child is in the legal custody of a third-party pursuant to a probate guardianship, and who desire to regain custody, are at a distinct disadvantage in doing so. They are at a disadvantage brought on partially by their own actions which caused the guardianship to be granted in the first place and, unless they can afford legal counsel, because they must navigate the proceedings to achieve this goal largely on their own. That parents are not provided with assistance runs directly counter to what is generally thought to be an important interest. Courts have recognized that “[t]he interests of a parent in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights.”3

The parents’ challenge to custody of their child starts with the filing of petition by “A relative or other person on behalf of the minor, or the minor if 12 years of age or older . . .” for appointment of a guardian.4 Generally, the petition is based on factors which the court believes are detrimental to the child. If the petitioner believes that the minor is exposed to imminent danger the petitioner can file for temporary guardianship on an ex parte basis.5

Notice to the parents is required if the parents can be located. However, even if they can be located and served, once served, the parents must digest what is served on them in a short period of time and respond to the petition. Often, the parent cannot be located or, if located and served, do not appear at the hearing to object to the proceedings.

If the temporary guardianship is granted, the parents’ rights over their child are suspended.6 The parents cannot visit or contact their child unless the guardian consents. If the relationship between the parents and the guardian was amicable prior to the granting of the guardianship, visits may occur. However, the guardian can impose restrictions on day, time, location, and number of visits.

The guardian has supplanted the parents in very significant ways and now holds many of the rights over the minor’s life previously exercised only by the parent.

At some point after the temporary guardianship is granted and the hearing on the general guardianship occurs, the court may appoint legal counsel to represent the minor.7he role of the appointed counsel is to represent the minor in the proceeding, and in doing so, looks out for the child’s best interest. To the extent that the counsel’s obligation places the counsel at odds with the parents, they must now take this additional actor’s role into consideration.

If the parents appear at the hearing for the general guardianship and object, the court may order all parties to mediation. Once again, the parents may be confronted with a proceeding that is beyond their experience and for which they may not be able to properly prepare, even though it may provide the best alternative for the parents and a continued relationship with their child.

If the mediation is not successful and the parents continue to object to the guardianship, the matter will be set for trial. The challenge for the parents just increased in difficulty and consequence. Preparing for trial and conducting a trial is challenging even for most attorneys; it is deathly difficult for parents.

If the general guardianship is granted, the parents now confront why it was granted and how to rectify it; in other words, “How do I get my child back?” While the answer may appear straight forward, achieving this goal is daunting. If the child was removed from the parents’ custody based on the parents’ drug or alcohol abuse, homelessness, neglect or abuse, the parent must now address these issues, demonstrate to the court that they have done so, and demonstrate that they can provide a stable and supportive environment for the child. However, the parents must resolve these issues on their own.

Meanwhile, the child’s life marches on. If the guardian provides a stable home where the child’s physical and emotional needs are met, not only does this establish the required showing that nonparental custody is in the best interest of the child and parental custody would be detrimental, but it fosters bonding between the minor and the guardian. If the minor is left with the guardian for too long, the bonding increases and it can convert the guardian into a de facto parent. This scenario led one court to state, “As a practical matter, then, many guardianship orders will forever deprive the parents of a parental role with respect to the affected child.”8

Also, the longer the child lives with the guardian, the harder it is for parents to succeed in terminating the guardianship. Termination of a guardianship is granted when “[i]t is no longer necessary that the ward have a guardian or that it is in the ward’s best interest to terminate the guardianship.”9The difficulty that parents confront in meeting this criteria was articulated by a court when it stated, “Moreover, once the court has concluded that the child’s continuous residence with nonparents would make it detrimental to return custody to a parent, it is difficult to perceive how parent could even prove the guardianship was ‘no longer necessary.’”10

It is hard not to conclude that parents who have had their legal custody suspended through a probate guardianship stand very little chance of regaining custody. The legal challenges to accomplishing such a feat are daunting and, with little to no help provided to the parents, this goal is largely out of reach.

[1] Prob. Code §1514.
[2] Fam. Code §3041 (c) (d).
[3] In re James R. (2007) 153 Cal.App. 4th 413, 428.
[4] Prob. Code §1510(a).
[5] Prob. Code §2250(a)
[6] Fam. Code, §7505 (a); Guardianship of Ann S., (2009) 45 Cal.4th 1110, 1124.
[7] Prob. Code § 1470.
[8] Guardianship of Stephen G. (1995) 40 Cal.App. 4th 1418, 1427.
[9] Prob. Code §1601.
[10] Stephen G., 40 Cal.App. 4th at 1426.

Nicolás C. Vaca is a Walnut Creek attorney practicing probate law emphasizing guardianship and conservatorships. Mr. Vaca was the Probate Facilitator for the Contra Costa County Superior Court from 2015 to 2019.