All states and counties will differ, but here is what you can expect. (Information obtained from Santa Clara County, CA Government page)

Usually, you must file a guardianship case in the county where the child lives. BUT, if there is a child custody case already with custody orders affecting the child in another county, you MUST file the guardianship petition in that same county and court where the custody orders exist. That way, there will not be 2 different courts issuing custody orders about the minor that could conflict with each other.

Filing a case to become a guardian

  1. Fill out your forms
    Fill out:
    • Petition for Appointment of Guardian of the Person: you are asking for guardianship of the person only,
      Petition for Appointment of Guardian of Minor if you are also asking for a guardianship of the child’s estate;
    • Guardianship Petition–Child Information Attachment 
    • Notice of Hearing–Guardianship or Conservatorship 
    • Consent of Proposed Guardian, Nomination of Guardian, Consent to Appointment of Guardian, and Waiver of Notice 
    • Duties of Guardian 
    • Letters of Guardianship 
    • Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) 
    • Confidential Guardian Screening Form 
    • Parental Notification of Indian Status for each parent of the child and the people asking to be appointed guardian. You do not need this form to start your case, but you will need it early on. If the parents are going to consent to the appointment of you as a guardian, have them each sign this form too.
    • Order Appointing Guardian or Extending Guardianship of the Person
    • Other forms your local court may require. Ask the court clerk if there are local forms you need to fill out.If you are seeking to become a guardian.
  2. Have your forms reviewed 
     If your court’s Family Law Facilitator or self-help center helps people with guardianship cases, ask them to review your paperwork. They can make sure you filled it out properly before you move ahead with your case.
  3. Make at least 3 copies of all your forms  
    The original is for the court (sometimes, the court will also keep 1 of the copies). One copy will be for you. The others will be for the people who will have to get notice (see step 5).  You may need to make more copies after you file your forms.
  4. File your forms with the court clerk
    Take your original plus the copies to the clerk’s office in your courthouse. They will keep the original and return the copies to you, stamped “Filed.”  You will have to pay a filing fee. If you cannot afford the fee, you can ask for a fee waiver.
  5. Give notice
    The law says you must “give notice” to certain people, relatives, and agencies. This means someone 18 or older —NOT you—must “serve” (give) copies of your court forms either in person or by mail to those people and agencies so they will know you are asking to be the guardian of the child.  You must do this even if you think they do not care or they disagree with you. There are rules for giving notice. You must follow them carefully. Otherwise, you may have to start all over.  If you do not know where any of the relatives that have to get noticed are, you will have to look for them and then ask the court to let you move ahead with your case without giving notice to those relatives you cannot find.  Click for tips on how to find someone. Click for help finding someone in prison. There are 2 ways to serve (give) notice: personal (hand-delivered) and by mail.  Find out more about service or giving notice. You have to give notice as follows:
    • Give personal notice to the child’s parents, the person with legal custody of the child now, and the child (if the child is 12 or older) – at least 15 days before the hearing.
    • Give notice by mail to the child’s grandparents (on both the mother’s side and father’s side), brothers and sisters, and half brothers and half-sisters – at least 15 days before the hearing. You do not need to give notice to stepbrothers or stepsisters.
    • Give notice by mail to your county’s human services or social services department – at least 15 days before the hearing. Find the address in your county.
    • Give notice by mail to the California Department of Social Services if you are not related to the child by blood, marriage, or adoption. Someone at least 18 years old—NOT you—must mail a copy of the forms you filed at least 15 days before the court hearing to: State Department of Social Services
      Director of Social Services
      744 P Street
      Sacramento, CA 95814For those relatives you could not find:
    • Write down everything you did to try to find them, with details of who you talked to, the dates, and what the results were.
    • Then, file a Request to Dispense with Notice that includes all the details of your efforts to find the missing relative. It is not an existing court form, so ask your court’s family law facilitator or self-help center if they can help you with a sample.
    • File your Request to Dispense with Notice with a blank Order Dispensing Notice.
    • If the judge approves your request, he or she will sign the Order Dispensing Notice and you will be able to move ahead with your case without giving notice to the missing relative(s).
  6. Get completed proof of services forms from the server and file them with the court
    • For personal service, the server fills out and signs the Proof of Personal Service of Notice of Hearing — Guardianship or Conservatorship, and then gives it to you.
    • For service by mail, the server fills out and signs the Proof of Service by Mail on page 2 of the Notice of Hearing– Guardianship or Conservatorship, and then gives it to you.
    • File your Proof of Service with the court clerk before your court date. Read What is “Proof of Service” in a Guardianship? 
  7. Get everyone who agrees to sign a consent and waiver of notice
    Anyone who agrees that you can be the guardian and does not want to get notified of the court date can sign the Consent to Appointment of Guardian and Waiver of Notice. You do not have to give notice to anyone who signs this part of the Form. If they do NOT sign, you will have to give them notice, even if they say they agree you can be the guardian.
  8. Talk with the court investigator who will prepare an investigation report
    Before the court hearing:
    • A court investigator will interview you (and possibly the child). If the child’s parents are alive and available, the investigator may interview them, too.
    • The investigator will make a recommendation to the judge.
    • There will be a court hearing and the judge will review your case and decide if you can be the guardian. The court investigator will set up a formal home study. The investigator will:
    • Visit the home where the child will live;
    • Interview the child and the proposed guardian;
    • Interview the parents if needed;
    • Review documents about the child (like school records and medical records); and
    • Do a background check on you and all adults living in the home to see if any of you has a record of neglect or abuse or a criminal record. The court investigator will only investigate your case if you are a relative of the child.
      If you are NOT a relative, the court will refer your case to your county’s human services or social services department and they will do the investigation. Before you are appointed as guardian, the court investigator wants to know if:
    • There is a valid need for guardianship, or if the child should be with the parents.
    • The case should be referred to another agency, like the county social services department.If the investigator thinks the child needs guardianship, he or she will look at:
    • Where the child will live;
    • Where the child will go to school;
    • Your family situation (including all household members);
    • Health-care issues (including mental health problems); and
    • Visitation by the parents. If the child is old enough and mature enough, the court investigator may also talk with him or her about the guardianship. In some cases, the court investigator may recommend that the court appoint a lawyer to represent the child. This lawyer would be paid for by the court. The cost of the court investigator and possibly the court-appointed lawyer may be charged back to the person asking to be appointed guardian. If you cannot afford the fees, you will need to ask the court for a fee waiver. The court investigator’s report summarizes all the information for the judge and will have:
    • Recommendations about your case;
    • Any concerns the court investigator may have about the guardianship; and
    • Any other recommendations the court investigator thinks would help, like an evaluation, mediation, or emergency screening (if needed).
  9. Go to your court hearing
    Take to your hearing:
    • Get to your hearing on time. The date, time, and room of your hearing will be on your Notice of Hearing 
    • The judge may ask you why you want to be the guardian.
    • If the parents or other relatives are there, the judge may ask them to speak too.
    • The judge may also ask the child questions. See Going to Court to read more information about how to prepare for your court hearing.
  10. The judge makes his or her decision If the child’s parents agree to the guardianship, a judge may order a guardianship if it is necessary or appropriate. If 1 or both of the parents objects to the guardianship, a judge will order guardianship only if:
    • Staying with the parents or 1 of the parents will be detrimental to the child, AND
    • The guardianship will be in the best interest of the child. If the judge agrees that you can be the guardian:
    • He or she will sign your Order Appointing Guardian or Extending Guardianship of the Person 
    • The clerk will issue the Letters of Guardianship that you have signed.
  11. File your court order with the clerk.
    Take your Order Appointing Guardian or Extending Guardianship of the Person and Letters of Guardianship to the clerk’s office to certify and file them.NOTE: Get from the court clerk at least 1 CERTIFIED COPY of the Letters of Guardianship for each person or entity that will have regular contact with the child. So, for example, if you and your spouse are both appointed guardians of the child, each of you should keep in your purse or wallet at all times a certified copy of the Letters of Guardianship. If the child goes to school, the school should also have a certified copy of the letters. This way, if the child’s parents show up to try to take the child, the guardian or the school can show the police that the court has made you guardian.
  12. Follow up with status reports.
    Every year, the court will mail you a blank Confidential Guardianship Status Report to your address.
    • Fill it out and return it to the court. The court investigator will read your report. If there are no problems, the court will send you a new status report form in a year.
    • If you do not send the status report, you may be removed as the guardian.
    • Sometimes, the court will want more status reports or will order you to come to speak to the judge. If the court has any concerns, the judge may monitor your situation.

Filing For Temporary Guardianship

Sometimes, there is an emergency and the guardianship has to be set up quickly.

For example:

  • The child needs immediate medical treatment;
  • The child needs to be enrolled in school;
  • Both the child’s parents are dead, absent, incarcerated, or incapacitated; or
  • The child’s parent is also a minor.

In emergencies such as these, you can ask the court to appoint a temporary guardian. You must show “good cause,” which means you have to have a really good reason to ask for a temporary guardianship. (See Probate Code section 2250(b))

Even if you file for a temporary guardianship, you still have to file for a general guardianship at the same time. A temporary guardianship is an emergency order only and will end when a general guardian is appointed by the court.

To ask for an emergency temporary guardianship, fill out:

  • Petition for Appointment of Temporary Guardian of the Person if you are asking for guardianship of the person only,
    Petition for Appointment of Temporary Guardian  if you are also asking for guardianship of the child’s estate;
  • Order Appointing Temporary Guardian ;
  • Letters of Temporary Guardianship 
  • Any other forms your local court requires.

Remember, you also have to fill out all the general guardianship forms.

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