California Self-Help Law Center
During the Case
In California, establishing legal guardianship of a child is a process that includes a number of steps. This section is designed to help the people involved to pay attention to the process and do what is required of them by law.
The information below can help you with what to do when you have been "served" with a "Petition for Appointment of Guardian" of your child.
If you receive a copy of a "Petition for Appointment of a Guardian" for your child, you have two basic choices:
- you can agree to the guardianship, or
- you can oppose the guardianship.
Some things to consider when making this decision:
- Does the proposed guardian have the necessary maturity, experience, temperament, patience and stamina to take care of your child?
- Is the proposed guardian young enough or old enough to be a good caregiver for your child?
- Does the proposed guardian have the material and emotional resources to take care of your child?
- Does the proposed guardian have a genuine interest in your child's welfare?
- Does the proposed guardian have some understanding of the emotional needs of your child?
If you AGREE to the appointment of this guardian for your child:
You can complete a:
- Consent of Guardian, Nomination, and Waiver of Notice (Form GC-211)
Give the form to the proposed guardian to file with the court.
If you DO NOT AGREE to the appointment of this guardian for your child:
- You can file a
Declaration Objecting to Guardianship/ Declaration in Non-Support of a Guardianship Petition
- This is to be taken the courthouse and filed with a court clerk as soon as possible after the "Notice of Hearing" was received.
- Learn where to file your "Declaration" in your county.
If you do not agree to the appointment of a guardian for your child, you must fill out and file a "Declaration in Opposition" of the guardianship petition. There is no standard court form for this, but you can use a general Declaration form (Form MC-030) for this purpose.
- Declaration (Form MC-030)
In this Declaration you need to:
- explain to the judge (1) why a guardianship is not in your child's best interests, or (2) why you object to this particular person being guardian.
NOTE: Find out if your county's court has a Probate Examiner. He or she may be able to help you.
Once you have filled out your "Declaration Objecting to Guardianship" to the best of your ability, make 3 photocopies of it:
- make two copies for you to keep, and
- one extra copy for the court (the court will take the original of the Declaration plus one copy that they will deliver to the court investigator for you.)
Now you are ready to take them to the courthouse to be filed.
- Take the original and all three copies of your Declaration to the clerk's office. Give them to the clerk. The clerk will stamp them to show that they have been filed. The clerk will keep the original copy of each of your Declaration plus one copy. The clerk will give two sets of copies back to you.
Get a list of courthouses and their locations in California.
You will have to pay a filing fee. You can call the clerk's office before you go to find out the fee, and how you can pay.
- If you cannot afford the filing fees, there are forms, called "Fee Waiver" forms, you may file to ask if the judge will allow you to pay less or nothing at all.
After you have filed your Declaration at court, you have to make more photocopies of the Declaration that has been stamped "Filed" and mail them to all of the people who are participating in the process. This is called "service of process" and is very important.
After you have filed your "Declaration in Opposition to Guardianship" with the court, a copy of it has to be mailed to all of the people who are actively participating in the legal process. This is called "Service of Process" and is very important.
Who has to be served?
- The proposed guardian;
- Any lawyers involved in the case (no matter if they are representing the guardian, the other parent, or the child);
- The other parent;
- Any other person or agency that you know is involved.
Who can serve the Declaration?
You cannot serve your own papers. You have to ask another adult who is over the age of 18 years, and who is not involved in the case, to serve (mail) the papers for you. This could be a friend, a co-worker, a neighbor, and so on.
How can the papers be served?
The Declaration in Opposition to Guardianship can be sent to everyone by first class mail.
- Just fold it and put it in an envelope, write the address on it, put a postage stamp on it.... and then ask someone else to put it in the mailbox for you.
The person who served your documents has to complete one Proof of Service form for each person served and return it to you for filing with the court.
You need to let the court know that you have had your "Declaration Objecting to Guardianship" mailed to everyone actively involved in the guardianship process. To do this, ask the person who mailed your Declaration form to fill out and sign a "Proof of Service by Mail" (Form FL-335) for each person served.
- Proof of Service by Mail (Form FL-335)
After teh person who mailed the Declaration for you has filled-out the form, photocopy the form and take these forms to the court clerk. The clerk will file and stamp all of the forms. The court will keep the original of each form, and will give the copies of these forms back to you.
KEEP YOUR COPY OF EACH "PROOF OF SERVICE" IN A SAFE PLACE and take it to any court hearing that has been scheduled in this case.
Visitation with your child is not automatically addressed in a guardianship hearing.
If you and the proposed guardian cannot reach a clear agreement about your rights to visit your child, as you prepare for court you need to be ready to raise the issue.
IF a guardianship is granted by the court:
- how often, and
- under what conditions could you visit your child.
Guardianship cases often have more than one hearing.
- Sometimes a Temporary Guardian is appointed until the general guardianship petition is decided upon.
- While the case is going on, and if you and the Temporary Guardian cannot agree about visitation, you may ask the judge to order visitation until the case has been decided.
Meanwhile, there are things you can do to
After a guardianship case is filed, a court investigator will do a background check. If no one is against the request to appoint a guardian, the court investigator will probably not be involved further.
However, if someone is against the request, that means the case is
The investigation will possibly include:
- A visit to the homes of the possible guardian and the parents. The visit will look at things that affect the best interests of the child, such as: how clean is the home, is there room for the child in the home, what is the atmosphere of the home, and is the child comfortable in the home.
- How well the child is doing with both the possible guardian and the parents,
- Interviews with the parents, the proposed guardian and the child.
- Interviews with doctors, therapists, teachers, other case workers, friends, and any other people who have information about the best interests of the child
- If the child is of Native American/American Indian ancestry, then the investigator will also work with the child's tribe to get more information.
After the investigation, the investigator will write up a report. The investigator will summarize for the judge the social history of the child, the interviews, and information about the home visits. The investigator will explain his or her concerns about each home. The report will also include a recommendation for a plan that he or she believes is in the child's best interests.
NOTE: A court investigation costs around $800.00. The potential guardian or the parents may be required to pay all or some of this cost. The court investigators will usually recommend who should pay the investigation fees.
It may be possible that your county's court has a local form that can be used to ask the court to allow all or part of this fee to be paid later.
In California, guardianship hearings take place in a courtroom. These hearings are often very short (sometimes as little as 10-15 minutes), so you really need to plan ahead if you want to give the judge your information before he or she makes a decision. To get ready
for your court hearing:
Know Your Own Case
- Read the court papers carefully. Understand what you asked for, and what the other party has asked for in their papers.
- Before your own hearing, summarize, organize and write down the key points you want to tell the judge. Try to make it as clear and simple as you can. Be ready to explain why the judge should approve (or not approve) each request. Practice speaking a few times - if you can, practice in front of friends or family.
- Make an outline listing your reasons for each request and how the other named party responded. This will help you to speak to the judge if you get nervous in court.
- Be sure to focus on the issues that are the reason your court date was scheduled. The judge cannot address issues that are not identified in the original paperwork filed to request the hearing. If you have other problems to resolve, you can schedule a separate hearing for that purpose.
- Get ready to bring copies of all of your paperwork with you to court, including:
- Copies of everything you've filed with the court concerning your case,
- Copies of everything that has been served on you in this case, and
- Any other paperwork that is related to your case.
- Also bring a copy of an documents you have filed recently to show the judge - just in case the paperwork did not make it into the file.
Find out Where to go and What These Cases are Like
Learn how to be on time for all court dates. Look on a map and find out where the courthouse is. Learn the schedules of the buses that will get you to the courthouse, or figure out what roads would be best if driving. Learn where to park.
- It may be a good idea to go to the
family court and observe another guardianship hearing before going to yours so that you can get a better idea of what to expect.
NOTE: If you know ahead of time that you are unable to attend the hearing in person, there may be a possibility for you to arrange to participate by telephone. Call the court clerk in your county for information and to make the necessary arrangements.
- Find the court in your county.
Know What to Do at Your Court Hearing
In California, guardianship hearings take place in a courtroom in front of a judge or a commissioner. In the same courtroom there will also be a court clerk and a
Special Note: The following are general guidelines. The actual rules may be different in each court, so learn your county's local rules of court on trial procedures. Find your county's court website.
When your case is called, the judge will speak to you and the other people involved. Then the judge will make a decision about assigning a legal guardian based upon many considerations including:
- what is in the child's best interests and what is best for the welfare of the child, and,
- if the child is 12 or older, the judge will also consider the child's preferences as to who will be appointed guardian.
There may be more than one court hearing before the case is settled.
For example, the judge cannot hear the case if there is not one Proof of Service (or Declaration of Due Diligence) filed for each person who has a right to know that the case is being heard. Or, the judge may order the potential guardian and the parent to go to mediation to solve some of their issues before a final decision is made.
At the hearing when the final decision is made on the guardianship petition, the judge may:
- appoint the petitioner as guardian,
- decide there is no need for a guardian, or
- decide that someone else should be appointed as the guardian.
If all paperwork is correctly completed and the judge has made a decision, he or she will sign a court order clearly stating what that decision is.
ALERT! The case is not finished yet. See
NOTE: Visitation is not automatically addressed in the guardianship proceeding. It is up to one of the people involved to raise the issue. Before the hearing, it would be good if the potential guardian and the parent attempted to reach an informal agreement regarding a visitation schedule for the parent and the child. If this doesn't work out, at the first hearing on the guardianship the parent may tell the judge he or she would like visitation with the child. Get more information about
- Dress neatly and respectfully.
- Take all of the documents that will be needed to show to the judge. Be sure you have copies for the other side.
- If you intend to call witnesses (other than you and the other side), and have filed and served a witness list, arrange for your witnesses to be present at court. Make sure they know where to go and that they allow plenty of time to find the courtroom. Give your witnesses a copy of this page so that they know what to expect.
- Be on time. Allow extra time for traffic or other possible delays. (If you are delayed or unable to attend the hearing due to a car breakdown, sudden illness, or other emergency, contact the department clerk on or before your hearing time.)
- Turn off your cell phone and/or pager when you enter the courtroom.
- When your case is called, walk to the table or podium in front of the judge and stand facing the judge.
- Be prepared to state your name and your relationship to the case.
- Speak clearly and loud enough that the judge can hear you. Speak only when it is your turn.
- When you speak to the judge, act respectfully and call him or her “your honor.” Be sure never to interrupt the judge.
- Answer all of the judge’s questions and stop talking immediately if the judge interrupts you.
- If you don’t understand something, say that you don’t understand. Someone will try to explain it for you.