Raising children can be complicated, especially for some people. There
are many situations where a child’s parents may not be able to raise
their son or daughter. There are also scenarios where parents may kick
their teenage son or daughter out of the home. Sometimes, the living environment
at home is so unhealthy, the teenage child leaves home for their safety
Are you interested in getting
custody of someone else’s child? Perhaps this child is your grandson or
granddaughter or maybe they are niece or nephew. Or, maybe this child
is your student, a neighbor, or your child’s friend and you know
they are not being properly cared for at home.
Perhaps the child’s parents are abusive or neglectful or they have
a substance abuse problem. Whatever your reason, you’re probably
wondering if you have the legal right to petition the court for custody
of another person’s child – a reasonable question indeed.
In this article, we explain whether or not someone in California can seek
custody of a child who is not theirs.
What You’re Seeking is ‘Guardianship’
Can someone seek custody of a child who is not their own? The answer is
yes, it is possible. However, in California, when you someone seeks custody
of a child who is not theirs, it is called “guardianship”
as opposed to custody though it means the same thing.
In California, when a non-parent seeks custody of a child and the court
approves the request, the individual has custody of the child or they
are managing the child’s property, or they have custody of the child
and they are managing the child’s estate. For the purposes of this article
we are going to focus strictly on guardianship in the sense that the person
is asking for custody of a child who is not theirs.
Probate Guardianship of the Person
If you want custody of a child who is not yours, such as a grandchild,
a niece or nephew, or even a friend or neighbor’s child, what you’re
seeking is called “probate guardianship of the person.” Guardianship
cases are brought by the person who is seeking custody of a child.
If the court awards the petitioner guardianship of the minor, then the
individual will have full legal and physical custody of the child. This
means the person will be legally responsible for the child and they will
have to care for the child’s needs as if the child were their own.
The courts set up probate guardianships of the person when someone who
is living with a child and is not the child’s parent so they can
make decisions on the child’s behalf. Without being the child’s
guardian, the adult cannot enroll the child in school, get the child health
insurance, get the child all the medical care they need, sign legal documents
for the child, and so on.
Guardianship vs. Adoption
Guardianship is NOT the same as adoption. In a guardianship, the parents
still maintain their parental rights. This means the parents can ask the
court for reasonable contact with their child. If the parents later become
capable of taking care of their child, the court can terminate the guardianship.
What’s more, guardians can be under the court’s supervision,
which means the court will monitor what the guardian does.
What occurs with an adoption:
- Unlike a guardianship, the parental rights (for both parents) are terminated.
This means the child’s biological parents have to rights or responsibilities
toward their child.
- The adoptive parents become the child’s legal parents, which becomes
a permanent arrangement.
- When the child is adopted, he or she earns the right to inherit from their
adoptive parents the same as a biological child would.
- When a child is adopted, the adopted parents are not supervised by the
court, but guardians are.
- When a child is adopted, the child earns the right to Social Security benefits
under their adopted parents’ work records.
If you’re seeking a guardianship of the person, which is where you
gain the same responsibilities as a normal parent, such as legal and physical
custody. If the child needs to go to the hospital and your insurance has
a $300 or $500 emergency room copay for example, you’ll be responsible
for paying it. Or, if the child needs dental care or new shoes or school
supplies, you’ll have to pay for these necessities.
Are only family members allowed to be guardians in California? No, anyone
can be a guardian. A guardian can be a grandparent, an aunt or uncle,
an adult sibling, a friend of the family, a neighbor, or anyone else who
is suitable to raise a child.
If you become a guardian of a child, you will be responsible for:
- The child’s food
- The child’s housing
- The child’s clothing
- The child’s dental and medical care
- The child’s education
- Any of the child’s special needs
- Intentional damage caused by the child
In our experience, guardianships are often needed when one or both of a
child’s parents are mentally ill, are in the military and are being
deployed, have to go to rehab for some time, are going to jail or prison
for a while, have a drug or alcohol problem, have a history of being physically
or sexually abusive, or cannot care for their son or daughter for some
other reason, such as a disability, a car accident, or a terminal illness.
To learn more about guardianship, terminating parental rights, or adoption
in California, we invite you to
contact Claery & Hammond, LLP for a
free case evaluation.