Who can be a legal guardian?

Anyone, so long as a judge in probate court approves them. You would go to probate court to become the guardian of someone else's child if you are a close friend or relative of the child and want to help take care of the child because the parent cannot. You can take care of the child until the parent is able to again or you can help arrange a more permanent situation such as adoption.[2409]

Remember – You would not go to probate court to BECOME a guardian if you are the child’s parent. In general, the child’s legal or biological parent cannot be appointed as the child’s guardian – only someone who is not the parent can be appointed guardian. If you are the child’s parent and want to get custody or visitation, you will generally need to go to family court (PG. 744) or juvenile dependency court if there is a CPS case involving your child.[2410]

To give you custody of someone else’s child through a probate guardianship, a probate court judge will look at the following factors:

    Whether the guardianship is in the “best interest of the child.” In all child custody and visitation cases, including ones for probate guardianship, the judge will consider such factors as:
    The health and safety of the child,
    Any history of abuse by the parent or person seeking custody,
    Habitual or continued substance abuse by the parent,
    The criminal record of the non-parent petitioning for guardianship, AND
    Whether the child will be raised in stable and loving environment.[2411]
    Whether giving custody to someone other than the child’s parent(s) would harm the child.[2412] The goal is to make sure the child is raised in a safe, stable, and loving environment.[2413]

REMEMBER! Your criminal record is one factor in the judge’s decision in allowing someone to be the guardian of a child. For more information on how your criminal record will impact your ability to reconnect with your child, see PG. 725 (“What does a judge look at when making a decision about . . . my child/grandchild?”).

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  1. 2409

    See Judicial Council of Cal., Guardianship (2016), http://www.courts.ca.gov/selfhelp-guardianship.htm.

  2. 2410

    Cal. Prob. Code § 1514(b)(2).

  3. 2411

    Cal. Fam. Code § 3041

  4. 2412

    Cal. Fam. Code § 3041

  5. 2413

    Cal. Prob. Code § 1514.