If I have been incarcerated and someone else is the guardian of my child, what are my legal rights as a parent?
Guardianship does NOT end your parental rights; it puts them on hold while the guardian has the child.[2402] This allows the guardian(s) to make all the decisions about caring for the child that a parent would make, without permanently cutting off the parents’ rights to ask for custody of their child back in the future.[2403]
Parent’s Rights: The child’s legal or biological parents still have certain rights for their child during the guardianship:
- The children in a guardianship are still considered legally and biologically “related” to their parents (the parents’ rights are not terminated);
- The judge or the guardian of the child can allow the parents or other relatives to visit with the children in a guardianship;[2404]
- When the judge appoints a guardian to have custody of a child, the judge may also give visitation rights to the child’s parent(s) and/or sibling(s) to visit the child.
- If the judge orders visitation, the child’s guardian must allow these visits to take place.
- If there is no court order for visitation, the guardian has the right to decide whether the child may visit with his/her parent(s) or other relatives. So if you don't have a court order and the guardian is not letting you see your child, you might need to go to Probate Court to ask the judge for visitation.
- Please Note: You will need to ask for visitation from the same probate court that appointed your child’s current guardian, which may be in a different county from where you live. You will also need to use that county’s own specific probate court forms to request visitation.[2405]
Parent’s Responsibilities:
The child’s legal or biological parents also still have certain responsibilities for their child during the guardianship. Parents must continue to financially support their children in a guardianship (including paying child support if it’s ordered – read more about child support on PG. 778. Also, children in a guardianship can inherit money or get Social Security benefits from their parents.[2406] If you are currently or about to become incarcerated and would like to learn how to pause your child support payments, see PG. 780 in the “Child Support” section.
- 2402
By contrast, adoption does terminate (end) the parental rights of the child’s legal or biological parents, and also creates a permanent parent-child relationship between the child and his or her adoptive parent. See Cal. Fam. Code § 7505(a) (cessation of parental authority upon appointment of guardian); Cal. Prob. Code § 2351(a) (custody rights of guardian); Cal. Welf. & Inst. Code § 366.26 (distinguishing between termination of parental rights and guardianship proceedings; contrast adoption, which terminates parental rights, with guardianship, which does not); In re Guardianship of Ann S., 45 Cal. 4th 1110, 1124 (2009) (probate guardianship suspends parental rights). ↑
- 2403
Cal. Prob. Code § 1500 et seq. The guardian is responsible for the child's care, including the child's: food, clothing and shelter; safety and protection; physical and emotional growth; medical and dental care; education and any special needs. The guardian is also be responsible for supervision of the child, and may be liable for any intentional damage the child may cause. ↑
- 2404
California Courts, Guardianship, http://www.courts.ca.gov/selfhelp-guardianship.htm. ↑
- 2405
Cal. Fam. Code § 3100. See JUDICIAL COUNCIL OF CAL, Duties of a Guardian, http://www.courts.ca.gov/1211.htm (2016). ↑
- 2406
California Courts, Juvenile Court Guardianship, http://www.courts.ca.gov/1206.htm ↑