The Complexities of Legal Guardianship

Legal guardianship allows a non-parent to obtain physical and legal custody of a child when parents are unable to provide care due to death, incarceration, addiction, or other challenges. Guardianships can be granted to relatives or non-relatives and typically last until the child turns 18. Guardians have the authority to make decisions about the child’s education, healthcare, and daily life, while parents often retain visitation rights.

Temporary Guardianship and Emergencies

Because the full guardianship process can take months—especially if contested—temporary guardianship is available in emergencies to ensure a child’s immediate safety.

Guardianship vs. Conservatorship

Guardianship applies to minors (under 18), while conservatorship is for adults who need someone to act on their behalf. Understanding the distinction is crucial for choosing the right legal remedy.

Procedural and Substantive Challenges

Guardianship cases are complex. Procedural errors, opposition from parents, difficulty locating or notifying parties, and compliance with laws like the Indian Child Welfare Act (ICWA) or the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) can all jeopardize a petition. Experienced legal counsel is essential to avoid these pitfalls and present a compelling case.

Guardianship and Child & Family Well Being (Formerly Known as CPS)

If CFWB removes a child and initiates a Juvenile Dependency Court case, probate guardianship is no longer an option. However, guardianship may still be possible—and highly beneficial—if a child is the subject of an active CFWB investigation. Securing guardianship in these cases can protect the child from foster care placement and may resolve the investigation by providing a safe, stable home.

Joinder in Family Court Cases

If there is already a Family Court case regarding the child’s custody, joining that case may be more appropriate than filing a separate guardianship petition. Legal advice is critical to ensure you are proceeding on the correct path.

Contesting Guardianships: A Parent’s Perspective

Parents facing guardianship proceedings must act quickly and thoughtfully. Granting guardianship is presumed to last until the child is 18, and terminating an existing guardianship is much harder than preventing one from being established. If you are concerned about losing custody or believe the proposed guardian is not suitable, consult an attorney experienced in opposing guardianships to protect your rights and your relationship with your child.

If you are considering legal guardianship, facing a guardianship petition, or need advice about a child involved with CFWB, contact Tot Law, APC for a confidential consultation. We are here to help you navigate this complex process with clarity, compassion, and unwavering advocacy.