Becoming a Guardian

This section explains what you need to do to become a child's guardian in California if the child does not have a parent who can act as parent to the child. Click on a topic for more information:

1. What do I have to do to become the guardian?
2. What happens after I fill out the forms?
3. Do I need a lawyer to set up a guardianship?
4. How much does it cost to hire a lawyer?
5. Are there court costs for a guardianship?
6. What if I don’t have enough money to pay for the court costs?
7. What will the Court Investigator (CI) do in a guardianship of the person case?
8. What can I expect if the CI does a full report?
9. What if the Court says the CI doesn’t have to do a full report?
10. What will the CI do in a guardianship of the estate case?
11. What if the child's parents don’t want me to be guardian?
12. Can a child ask the Court for a guardian?

For more information on guardianships, see more Self-Help pages about Guardianship .

1. What do I have to do to become the guardian?
   

   To become the legal guardian to a child, you have to file papers in court. You can get the forms you need from a stationery store, bookstore, or at the Self-Help Center . Or, go to the Judicial Council forms page . Tip: Select "Probate-Guardianships and Conservatorships" from the drop-down menu.

   If there is an emergency need for you to become a guardian, you can also file temporary guardianship papers with the court. You can get the temporary guardianship forms from the same place you get the other guardianship forms.

2. What happens after I fill out the forms?
   

   After you fill out your forms and file them with the Probate Court Clerk at the Downtown Superior Court (DTS), a Court Investigator (CI) will interview you and 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. Read more about the Court Investigator below .

   There will be a court hearing and the judge will review your case and decide if you can be the guardian. The Court will only approve the guardianship if it is in the child’s best interests.

3. Do I need a lawyer to set up a guardianship?
   

   You do not have to have a lawyer. But, it takes quite a bit of time and energy to fill out your court forms and to “give notice” to all relatives. And, most people make mistakes. The forms and rules for notice are complicated. If you don't follow them carefully you will have to come back to court and it will take more time to process your case.

   Sometimes a lawyer can help you present your case to the Court, especially if one or both parents object to the guardianship. You can find a probate lawyer from the membership list of the Silicon Valley Bar Association’s website . You can also get a referral to a lawyer from the Santa Clara County Bar Association . Their phone number is 669-302-7803 .

4. How much does it cost to hire a lawyer?
   

   Lawyers usually charge by the hour, about $225 – $300 per hour. Depending on how complicated your case is, a lawyer may spend any where from 5 to 30 hours on your guardianship case.

   If you cannot afford to hire a lawyer, contact the Court's Self-Help Center .

5. Are there Court costs for a guardianship?
   

   Yes. You will pay court costs - the Court’s filing fee and the Court Investigator's Fee. Filing fees are listed on the local fee schedule . The Court Investigator's fee is listed under "Conservatorships/Guardianships Investigation Fee."

6. What if I don’t have enough money to pay for the court costs?
   

   If you don’t make enough money to pay for your everyday needs AND pay for court fees and costs, you can ask for a fee waiver. Ask the clerk for these forms or get them by clicking on the form number below:

   • Request to Waive Court Fees ( Form FW-001 )
   • Information Sheet ( Form FW-001 INFO )
   • Order on Court Fee Waiver ( Form FW-003 )

   Fill them out and bring them with your other forms to the Probate Clerk’s Office at DTS . You won’t have to pay the filing fees yet. The judge will look over your application in the next few days and make a decision. You’ll get a copy of the judge’s Order. If the Order denies your application, you have 10 days to pay the filing fees.

7. What will the Court Investigator do in a guardianship of the person case?
   

   The Court Investigator will only investigate your case if you are a relative of the child. S/he may do a full investigation or may ask the Court for permission not to do a full investigation. If you are not a relative, the Court will refer your case to the Social Services Agency and they will do the investigation.

   To learn more about the duties of the Court Investigator, see Probate Code Section 1513 .

8. What can I expect if the Court Investigator does a full report?
   

   The CI will do a formal home study that includes:

   • A visit to the home where the child will live
   • Personal interviews with the child and the proposed guardians.
   • Review available documents (like school records, medical records etc.)
   • Phone interviews with the people involved to confirm what you wrote on your court forms<
   • A check on you and all adults living in the home to see if any of you has a record of neglect, abuse or a criminal record.
9. What if the Court says the CI doesn’t have to do a full report?
   

   If the CI doesn’t have to do a full report, s/he will:

   • Review available documents, and
   • Do phone interviews with the people involved to confirm what you wrote on your court forms
   • Do a check on you and all adults living in the home to see if any of you has a record of neglect, abuse or a criminal record.

   What factors does the CI consider? Before you are appointed guardian, the CI wants to know if:

   • There is a valid need for a guardianship, or if the child should be with the birth parents;
   • The case should be referred to another agency, like Social Services.

   If the investigator thinks the child needs a guardianship, s/he will look at:

   • Available housing,
   • Schooling,
   • Family dynamics (including all household members),
   • Health care issues (including mental health problems), and
   • Visitation.

   If the child is old enough and mature enough, the CI may also talk with him/her about the guardianship. If there are unresolved problems, the CI may recommend that the Court appoint a lawyer from Legal Advocates for Children and Youth (LACY) to represent the child.

   What information goes into the CI Report? The CI Report summarizes the above information for the judge, including:

   • recommendations about your case
   • any concerns the CI may have about the guardianship
   • recommendations for referral to Family Court Services for orientation, emergency screening, evaluation or mediation (if needed).
10. What will the Court Investigator do in a guardianship of the estate case?
    

    The investigator does not usually do an investigation for guardianship of the estate cases. But the CI will review available court documents and estate accountings. The CI will tell the Court if there are any potential problems, discrepancies, etc. If there are problems, the Court may ask the CI to interview the people involved.

11. What if the child's parents don’t want me to be guardian?
    

    The Court may not approve a guardianship if the parents do not agree in writing. But the judge can make an exception if the parents have abandoned the child, or if the judge decides it would be a detriment for the child to be in the parent's care.

    The Court Investigator will talk to the parents and let the judge know if s/he thinks it would be harmful for the child to be returned to the parent(s). If there has been neglect or abuse, the Court Investigator will refer the case to the Social Services Agency. Social Services will do a dependency evaluation to see if Juvenile Court should get involved and to see if the parents should be offered reunification services.

    If there are no issues of neglect or abuse, the judge can recommend that the parents, proposed guardian and child try to reach an agreement.

    The judge may:

    • refer you to Family Court mediation services, or
    • appoint Legal Advocates for Children and Youth to represent the child

    If you still cannot agree on what is best for the child, the Court may schedule an evidentiary hearing. This is like a trial where each side presents evidence and the Court hears testimony. Then the Judge will make a decision on your case.

12. Can a child ask the Court for a guardian?
    

    Yes. If the child is 12 or older, s/he can petition the Court for an appointment of a guardian. Legal Advocates for Children and Youth (LACY) may represent the child in court. If the case is for a guardianship of the estate, LACY will probably refer the child to a private lawyer.