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. 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.
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;
- 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.
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. 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.
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). ↑
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. ↑
California Courts, Guardianship, http://www.courts.ca.gov/selfhelp-guardianship.htm. ↑