How can my criminal record affect my chances of being appointed as a guardian in probate court for someone else’s child?
There are many aspects of your record that could affect your ability to become the legal guardian of someone else’s child in probate court. We explain what the judge will look at about your record, including what positives can help weigh against your criminal history. In probate court, the judge will look at the following:
- PAST CONVICTIONS: The judge can consider all of your convictions when deciding whether to appoint you as a guardian. But certain types of convictions are more likely than others to affect your chances of being appointed as a guardian. Although the judge will consider all of your past convictions, the convictions that are viewed most negatively are child abuse and/or domestic violence; registered sex offenses where the victim was a child; and rape or murder of the child’s other parent.
- RESTRAINING ORDERS: The judge will also consider any restraining or protective orders against you.
- CPS HISTORY: The judge will look at any history with Child Protective Services (CPS).
- DRUG OR ALCOHOL ABUSE: Finally, a judge will consider any history of drug or alcohol abuse (whether or not you have any convictions that were related to that drug or alcohol abuse) to decide if it is in the child’s best interest to make you his/her guardian. The judge may require you to do drug or alcohol tests, or make an order that requires you NOT to use any drugs or alcohol. However, the probate court judge cannot deny your guardianship petition based only on the results of a positive drug/alcohol test—a dirty test is only one factor of many when deciding whether the guardianship would be in the child’s best interest.
- NEW CONVICTIONS: If you’ve been appointed the child’s legal guardian, the judge can remove you as guardian (meaning, end your guardianship rights) if you are convicted of a felony, regardless of whether the underlying offense happened before or after you became the child’s legal guardian in court.
YOU CAN ALSO PRESENT POSITIVES TO THE PROBATE COURT JUDGE—see the next question!
Guardianship cases in probate court are governed by the same rules as custody cases in Family Court. Cal. Prob. Code § 1514(b) (appointment of guardian governed by standards of Family Code §§ 3020 et seq. and 3040 et seq.); Cal. Fam. Code §§ 3044 (presumption against persons perpetrating domestic violence); 3030 (sexual offenses against a minor; rape from which child was conceived; first degree murder of child’s other parent); 3044 (domestic violence); 3030 (sexual offenses against a minor). ↑
Cal. Fam. Code § 3031. ↑
Cal. Fam. Code § 3041.5. ↑
Cal. Fam. Code § 3041.5. ↑
Cal. Prob. Code § 1514(b); Cal. Fam. Code § 3041.5. The results of the drug/alcohol test will only be used when considering whether you should be the child’s guardian (i.e., whether the guardianship is in the child’s best interest), and cannot be used for any other purpose, such as criminal prosecution, parole violation, or civil penalties. Moreover, you may request a hearing to challenge the results of a positive test. ↑
Cal. Prob. Code § 2650(d). ↑