California

I. Designation of Standby Guardian
II. Agreement of the Non-Custodial Parent
III. Role of the Standby Guardian
IV. Court Process
Resources


I. Designation of Standby Guardian

California lawmakers inserted standby guardian elements into a law governing joint guardians. The intent is to minimize children's stress and disruption "whenever the parent is incapacitated or upon the parent's death." [Probate 2105(f)] There is no legal process special to this kind of guardianship: it moves through the court like any other request to designate a guardian.

The basis for the request to the court to appoint a joint guardian is the parent's "terminal condition as evidenced by a declaration executed by a licensed physician." The physician's declaration would describe "an incurable and irreversible condition that, without the administration of life-sustaining treatment, will, within reasonable medical judgment, result in death." [Probate 2105(f)] Beyond that, there is no triggering event, because the guardianship is not contingent upon some future event: joint care and custody begin as soon as the court appoints the co-guardian.

There is no requirement that the designation be in an attested document. The name of the proposed joint guardian appears in the petition for appointment. [Probate 1510 et seq.] While it is reasonable to assume that the parent's designation would carry significant weight with the court, there is no assurance that the parent's wishes would dominate the court's analysis.





II. Agreement of the Non-Custodial Parent

Both parents must be named in the petition for appointment and the non-custodial parent must be given notice within 15 days of the hearing. [Probate 1510-15ll]. A guardian shall not be appointed over the objection of the non-custodial parent "without a finding that the non-custodial parent's custody would be detrimental to the minor." [Probate 2105(f)] The process for proving that the other parent's care of the child would be detrimental is found in the Family Code at sec.3041. Thus, if the non-custodial parent won't agree to the appointment, the custodial parent does have a way to overcome that barrier, although it will require a hearing (perhaps combined with the hearing on guardianship), giving parties an opportunity to present evidence.




III. Role of the Standby Guardian

From the moment of appointment as a joint guardian, decisions are shared by both parent and guardian [Probate 2105(b), (c)(1), and (f)] The legislative intent was for the parent to "make arrangements for the joint care, custody and control" of the children "whenever the parent is incapacitated, or upon the parent's death." [at (f)] That language suggests that the guardian would want to step into the background when the parent's illness is in remission and she is able to parent effectively, but no process is suggested for working out decision-making arrangements.

The duties of a guardian are the care, custody and control of the child. [Probate 2105(f); 2351] These powers are activated as soon as the appointment is made, and end only when the parent dies, or the guardian is replaced, or (presumably) the appointment is revoked. If the joint guardian becomes the permanent guardian, the duties cease when the child attains majority or dies or is adopted or emancipated. [Probate 1600]





IV. Court Process

A relative, a child of 12 or older, or any other person may file a petition for appointment of a joint guardian, beginning the process. [Probate 1510] The petition names the proposed guardian as well as the child and the parents. Along with the petition, a licensed physician's statement must be submitted, declaring that the parent is suffering from a terminal condition that is "incurable and irreversible." [Probate 2105(F)]

A court hearing is scheduled at this initial point. There are no other triggering events requiring court confirmation. There is no provision for automatic transformation of the joint guardianship into a permanent guardianship upon the parent's death. In fact, the Joint Guardianship provision was established "to avoid the need to provide a temporary guardian…pending appointment of a guardian" as might otherwise be required upon the parent's death. [Probate 2105(f)]

The court hearing is conducted according to a standard of "best interests of the child." Sources of guidance for the judge as to what is in the child's best interests might be found in the Family Code which describes factors to be weighed in custody decisions, and the Probate Code which addresses the long term welfare of the child. (Note that the Probate Code specifically refers to the Family Code for guidance in matters of child welfare). If the child is of "sufficient age to form an intelligent preference," the child's wishes will be considered. [Probate 1514 (e) and Family 3011 and 3040.]

The guardianship is permanent when established.

		California Probate Code Div.4.Guardianship, Conservatorship, and Other Protective Proceedings Part 4. Provisions Common to Guardianship and Conservatorship Chapter 1. General Provisions Probate Code sec. 1510, 1511, 1514, 2105 (a) – (f), 2351; Family Code 3011, 3040, 3041,

Laura J. Roopian, Family; Guardians and Conservators – Removal of Two Year Requirement of Pending Death or Terminal Condition, 27 Pac.L.J.799 (1996).

Sunny Rosenfeld, Developments in Custody Options for HIV Positive Parents, 11 Berkeley Women's L.J. 194 (1996).

Kelly C. Rozmus, Representing Families Affected by HIV/AIDS, 6 Am.U.J.Gender & L. 299 (Spring 1998).

Marina T. Sarmiento, Legal Needs of Women with HIV, 9 Berkeley Women's L.J. 155 (1994)

Jeffrey Selbin & Mark Del Monte, A Waiting Room of Their Own: The Family Care Network As a Model for Providing Gender-Specific Legal Services to Women with HIV, 5 Duke J. of Gender L. & Policy 103 (Spring, 1998)

Source: Standby Guardian Laws. A Guide for Legislators, Lawyers, and Child Welfare Professionals, The American Bar Association, Center on Children and the Law and Circle Solutions. This document can be downloaded on the Resources page.