No, there is no requirement for the child to be living with the guardian for a certain amount of time when the guardianship is filed or before it is granted. But the Court will most likely want a plan in place for when the child will begin living with the guardian. The child must live with the guardian unless the judge says otherwise.
Getting a guardianship is done through the Superior Court in your county. If the child is under 12 years old, the proposed guardian can ask the court to be made the child’s guardian. If the child is 12 or older, the child can ask the court to appoint a guardian.
To get a guardian, a child over age 12 or the proposed guardian fills out the court’s forms. The forms need to be filed in court and copies need to be provided to parents (or person who has legal custody of the child) and sent via mail to grandparents and any sibling over the age of 12. Parents need to either consent to the guardianship or be provided a special notice if they do not consent. There will be a home investigation conducted of the proposed guardian’s home and a background check of the proposed guardian and any adult over the age of 18 living in the home. The court then holds a hearing. At the hearing, the judge will decide if the guardianship is in the child’s best interest.
A guardianship lasts until the child turns 18, gets married, is legally emancipated, or is adopted. A guardianship can also be ended by a court if the child (who is 12 or older), the guardian, or some other interested party asks for it to be ended, and if the judge finds that the guardianship is no longer in the child’s best interest. For information on when parents reunify with their child, click here. If the guardianship isn’t working out, whether or not LSC was involved with the initial guardianship case, call LSC’s Warmline for help.
The child’s parents are still their parents – a guardianship doesn’t change that. Guardianship suspends parents’ ability to make decisions about the child’s life because the guardian raises the child as his/her own. The child can still see their parents, but the child and guardian will decide when and how often these visits will happen. A court can also determine when a child sees the child’s parents by making a visitation order. Also, a guardianship can be terminated by the Court at any time if a parent is able to resume taking care of the child, the child wants to reunify with a parent, and it is in the child’s best interest to return to the care of a parent.
If you are an undocumented youth and have questions about paths to legal residency, or are at risk of being kicked out of school, go to our Immigration or Education pages on this site to learn more about LSC’s other services. You can also call LSC’s Warmline for information about our other services.
A legal guardianship is when a judge decides that a person other than a child’s biological parent will have custody of the child. Guardianship gives an adult the authority to make decisions for that child that a parent would normally make. The guardian has the right to raise the child without the child’s parents getting involved. A legal guardianship does not terminate the parent’s parental rights but instead suspends the parental rights.
Emancipation is a legal process that frees a child who is between the ages of 14-17 from the custody and control of their parent(s) or guardian. Minors can be emancipated if they enter into a valid marriage, are on active duty in the U.S. Armed Forces, or have received a declaration of emancipation from a Court (Family Code Section 7002). The requirements to receive a declaration of emancipation include:
For more information about the process of emancipation, click here. Also call LSC’s Warmline with any questions.
Guardianship hearings are all different, so there’s no way to know exactly what the hearing would be like. If the child’s parents, grandparents, and brothers and sisters over the age of 12 agree to the guardianship, the hearings are usually simple. If someone objects to the guardianship, it will be more complicated.
The older the child is, the more likely the judge is to consider what the child’s wants. The judge may ask the child if the child wants the proposed guardian to be his/her guardian and why. The judge may ask the child or the proposed guardian other questions as the judge tries to figure out what is best for the child.
A person over 18 years old can be a legal guardian for a person under 18. Guardians are usually relatives or family friends – responsible people who the child knows well. The guardian is responsible for the child’s care including but not limited to:
Guardians should be kind and loving toward the child and provide appropriate guidance on learning life skills.
A child can legally live with other adults without a guardianship if the child has his/her parent’s permission. Sometimes that kind of arrangement is fine; but some young people need a formal guardianship because their parents treat them badly and they fear that their parents will force them to return home. Guardianships can also help young people when their parents can’t care for them, because of lack of money, drug abuse, or being incarcerated.
Even if it’s fine with the child’s parents to live with another adult, it may be hard for that adult to meet all the child’s needs without legal authority. For example:
Guardianships aren’t always necessary. If you will be away from a parent for only a short time or your parents want you to be there, the adult you’re living with can sometimes take care of your needs with a Caregiver’s Authorization Affidavit, a form your caregiver can sign. LSC can help you figure out if you need a guardianship or if the Affidavit will work for you.