Superior Court of California County of San Diego CENTRAL DIVISION MADGE BRADLEY BUILDING 1409 4TH AVENUE SAN DIEGO, CA 92101-3105 Probate Services (619) 687-2000 NORTH COUNTY DIVISION 325 S. MELROSE DRIVE SUITE 1200 VISTA, CA 92081-6645 Probate Services (760) 806-6150 What is guardianship? Guardianship is a court proceeding in which a judge gives someone who is not the parent: • custody of a child; • the power to manage the child's property (called "estate"); or • both. This manual covers only petitions to file a Guardianship of the Person. This information can also be accessed online at http://www.courtinfo.ca.gov/selfhelp/family/ guardianship/. If Child Protective Services (CPS) is involved in your case, you probably have to go to the juvenile court to find out what you can do. What is probate guardianship of the person? Guardianship of the Person is set up because a minor child is living with an adult who is not a parent, and the adult needs the legal right to make decisions on behalf of the child. This manual covers only petitions to file a Guardianship of the Person. When a Guardianship of the Person is appointed, the natural parents no longer have the right to determine where the child will live or how he or she will be educated and do not have custody of their child. Instead, the guardian has those rights, as well as the responsibility to determine medical treatment to be given to the child. There are two types of Probate Guardianships: • Guardianship of the Person which means the guardian has custody of the child. • Guardianship of the Estate which means the guardian manages the child's income, money or other property until the child turns 18. SDSC PR-67(Rev. 7-07) American LegalNet, Inc. www.FormsWorkflow.com What do I have to do to become the guardian? To become the legal guardian to a child, you first have to file papers in court. You will need to fill out the following forms which are available in Probate Services: • Petition for Appointment of Guardian of the Person, Form GC-210(P) if you are asking for guardianship of the person only Or Petition for Appointment of Guardian of Minor, Form GC-210 if you also asking for a guardianship of the child's estate • Attachment to Guardianship Petition—Child Information Attachment, Form GC210(CA) • Notice of Hearing—(Guardianship or Conservatorship), Form GC-020 • Consent of Proposed Guardian, Nomination of Guardian and Consent to Appointment of Guardian and Waiver of Notice, Form GC-211 • Duties of Guardian and Acknowledgement of Receipt, Form GC-248 • Letters of Guardianship, Form GC-250 • Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Form FL-105 • Confidential Guardianship Screening Form, Form GC-212 • Order Appointing Guardian of Minor, Form GC-240 • Guardianship Pamphlet* (for information only; available in Spanish, Korean, Chinese, and Vietnamese), Form GC-205 • Order Directing or Waiving Investigation PR-63 What happens after I fill out the forms? After you fill out your forms: 1. Make at least 3 copies of each completed form. 2. File your forms with the probate filing clerk at one of the courthouses listed above. There is a filing fee due at the time you file your papers. 3. The clerk will give you back copies with a file stamp in the upper right-hand corner indicating your paperwork was accepted and set for hearing. The clerk will give you a date for your hearing. You will need to give “Notice” to relatives that the hearing will take place. See below for Notice instructions. SDSC PR-67(Rev. 7-07) 1 American LegalNet, Inc. www.FormsWorkflow.com 4. Follow the procedures for Guardianship Investigations: a. Review Instructions to Attorneys, Form PR-61. b. Submit an Order Directing or Waiving Investigation to Probate Examining. c. If you are a relative (related by blood, marriage, or adoption), make an appointment for the investigation with Family Court Services, (619) 557-2151 in San Diego or (760) 940-4433 in Vista, within three days of filing. d. If you are not a relative, send a copy of the petition only to Health and Human Services Agency, Children’s Services, Guardianship Clerk, 6950 Levant Street, San Diego, CA 92111. e. Follow the directions of the investigating agency and keep your appointments. f. Be sure to inform the agency of any change of address before completion of the investigation. Keep the court informed of any change of address by sending Form MC-040 to the court. Note: If a guardian fails to notify the court of a change of address, the court may order the guardian to pay the attorney’s fees of an attorney appointed to locate the guardian and the minor. g. The investigating agency will prepare their report and file it directly with the court. Does it cost to file a guardianship? Yes. There are court costs—the court's filing fee and the investigation fee. For some people who do not earn enough money, the court will say that they do not have to pay the fees. This is called a "fee waiver." What if I don't have enough money to pay the fees? If you cannot afford the filing fee, you can ask the court for a fee waiver. You can get the fee waiver forms at your courthouse in Probate Services: • Information Sheet, Form FW-001-INFO • Application for Waiver of Court Fees and Costs, Form FW-001 • Order on Application for Waiver of Court Fees and Costs, Form FW-003 If the court approves your Application for Fee Waiver, you won't have to pay the fees. If you cannot afford to pay the investigation fee, you may apply separately for a waiver or reduction of that fee by filling out the Order on Application for Waiver of Additional Court Fees and Costs, Form FW-003. File this application with Probate Services. If SDSC PR-67(Rev. 7-07) 2 American LegalNet, Inc. www.FormsWorkflow.com you wish a reduction or waiver of the investigative fee from the Department of Social Services, you must apply to that agency. How do I give notice? The law says you must "give notice" to certain people, relatives and agencies. This means someone—not you—must "serve" (give) copies of your court forms either personally 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 don't 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. There are two kinds of notice: personal and by mail. Have a professional process server, or a person over 18 years of age, not a party to the action, serve your papers: Give personal notice to the parents, to any person having legal custody of the child now or serving as guardian of the estate, and the child (if the child is 12 or older) This means the server—not you—personally hands a copy of the Notice of Hearing and a copy of the Petition for Appointment at least 15 days before the hearing to the persons listed above. Unless the judge gives you special permission, you cannot serve the parents by mail. Give notice by mail to the spouse named in the petition, the child's grandparents*, brothers and sisters, and half-brothers and half-sisters, and any person having the care of the proposed child if other than the person having legal custody This means the server—not you—mails a copy of the Notice of Hearing and a copy of the Petition for Appointment at least 15 days before the court hearing to the persons listed above. *Note: The child's grandparents are the parents of the child's mother and the parents of the child's father. Give notice by mail to the Director of Social Services in Sacramento and to the local agency investigating guardianships: This means the server—not you—mails a copy of the forms you filed at least 15 days before the court hearing to your county Department of Human Services or Department of Social Services. Give notice by mail to the California Department of Social Services. SDSC PR-67(Rev. 7-07) 3 American LegalNet, Inc. www.FormsWorkflow.com If you are not related by blood, marriage or adoption to the child, someone—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 95814 If you are related by blood, marriage or adoption to the child, someone—not you—must mail a copy of the forms you filed at least 15 days before the court hearing to: Health & Human Services Agency Children’s Services Guardianship Clerk 6950 Levant Street San Diego, CA 92111 If you are NOT related to the child by blood, marriage or adoption, someone—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 95814 AND Health & Human Services Agency Children’s Services Guardianship Clerk 6950 Levant Street San Diego, CA 92111 What if the parents and relatives agree that I can be the guardian? Anyone who agrees that you can be the guardian and does not want to get a notice of the court hearing date, can sign the Consent to Appointment of Guardian and Waiver of Notice part of Form GC-211. You don't have to give notice to anyone who signs this part of the form. If they don't sign the form, you still have to give them notice, even if they say they agree you can be the guardian. What if I don't know where the parents or relatives are? Try to find the parents or relatives by: • Asking all family members and friends; • Looking in phone books; SDSC PR-67(Rev. 7-07) 4 American LegalNet, Inc. www.FormsWorkflow.com • Calling telephone information; or • Doing anything else you think could help you find them. Courts have different requirements about what you need to do to find any missing relatives or the parents. Make sure you check with the local rules so that you take all the necessary steps. Once you do everything you need to find the parents or relatives and you still can't find them, you have to ask the court for permission to continue your case without giving notice to the missing relatives or parents. What happens after the server serves the forms? The server must fill out and give you a Proof of Service. For personal service, the server fills out and signs the Proof of Service, Form GC020(P), and then gives it to you. For service by mail, the server fills out and signs the Proof of Service by Mail on the back of the Notice of Hearing Form GC-020, and then gives is to you. File your Proof of Service forms with the probate filing clerk before your court date. What happens before the court hearing date? You will receive a copy of the Probate Examiner's notes approximately one week before the hearing. Check with Probate Examining (ask for the Probate Examiner listed on your notes) to determine if everything is in order or if you must correct something. You may need to "continue" the hearing, that is, set it for a later date, or you may only need to attend the hearing to assure the judge you still want the guardianship. After the hearing, if the court grants the petition, submit the written Order Appointing guardian (Form GC-240) to Probate Examining, along with Letters of Guardianship (Form GC-250). You may bring the order and letters to the hearing, wait until after court is finished, and the Probate Examiner in court will process them for you. The Letters are the evidence of your authority over the child. You should probably ask for a certified copy with the issuance of the Letters. SDSC PR-67(Rev. 7-07) 5 American LegalNet, Inc. www.FormsWorkflow.com What if there is a need for a temporary guardian before the hearing? An immediate appointment can be made of a temporary guardian pending the hearing on permanent guardian, under the following circumstances: 1. The Petition for Appointment of Guardian is filed at the same time. 2. There is an immediate and compelling need for appointment. 3. There is good cause to waive notice to the parents, or they consent and waive notice for the temporary guardianship. 4. The minor is residing with the petitioner at the time the request for temporary guardianship is made. If the above criteria can be met, the petition for temporary guardianship may be presented with the order during ex parte hours, to Probate Examining, who will review the matter. The petitioner will then have to see the judge who will determine if the temporary appointment is appropriate. The necessary documents for temporary guardianship include: 1. All the documents needed for the general guardianship. 2. Petition for Appointment of Temporary Guardian of the Person, Form GC-110(P) 3. Waivers of notice if you have them. 4. Order Appointing Temporary Guardian, Form GC-140, which order expires at the hearing on the reconsideration. 5. Letters of Temporary Guardianship, Form GC-150. 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. Talk to a lawyer if: • the child has property with a lot of value; SDSC PR-67(Rev. 7-07) 6 American LegalNet, Inc. www.FormsWorkflow.com • you live out-of-state; • there are other legal cases going on at the same time (like adoption, custody in family court, juvenile charges); • the child has special needs (physically/emotionally disabled); or • the child is Native American (because federal laws apply). • If you need help, call: An attorney of your choice. • Lawyers Referral Service in San Diego (619) 231-8585 or in north county (760) 7584755. • Legal Aid in San Diego (619) 262-5557 or in north county (760) 722-1935 or (760) 724-2740. • University of San Diego Law School Legal Clinic (619) 260-4532. • Camp Pendleton Legal Office (760) 725-6172. • Department of Social Services Foster Parent Program (619) 967-4410. • San Diego Volunteer Lawyers (619) 235-5656. • North Island Legal Office (619) 545-8144. SDSC PR-67(Rev. 7-07) 7 American LegalNet, Inc. www.FormsWorkflow.com