How Is Guardianship Determined If Something Happens to the Parents?


Although every parent hopes to live long enough to see their children become successful adults, the sad reality is that this doesn’t always happen. If you and your child’s other parent are driving home on New Year’s Eve or after a Fourth of July celebration and killed in a collision involving a drunk driver, what will happen to the child if he or she is still a minor?

Although you don’t want to think about someone else taking care of them, you need to be prepared for the possibility that it could one day happen. In this blog, we will explain how guardianship is determined in California when a minor loses both parents and how you can take steps now to control that outcome.

How is a Guardian Appointed?

If you don’t make guardianship provisions in your will, the court will appoint a legal guardian for your child. The judge will make a decision that they believe to be in the best interests of the child, which may result in an appointment you wouldn’t have made voluntarily.

Depending on the circumstances, the court may grant temporary legal guardianship to ensure uninterrupted care for the child pending a full hearing on a permanent arrangement. The petitioner usually files for temporary guardianship and permanent legal guardianship at the same time.

In California, court-appointed legal guardians must be at least 18 years of age and have no felony or misdemeanor convictions on their record. In the absence of a will designating a guardian, courts prefer to appoint a close family member.

After the proposed guardian files their petition and notifies any parties or agencies who have an interest in the outcome, a court investigator will interview them and possibly your child too. They will then make a recommendation to the court. Someone will also carry out a background check on the person seeking guardianship and carry out a home visit.

Once the investigation concludes, the judge will schedule a court hearing, review the petition, and make a final decision. After receiving the court order, the clerk will issue Letters of Guardianship to the newly-appointed guardian, who will then be authorized to make decisions for the child and raise them to adulthood.

Appointing a Guardian for Your Children Now

If you have a will, you can use it to designate someone to become the legal guardian for your child if they become orphaned and there is no surviving parent. Although the court will ultimately make the final decision, your preference would be seriously considered and, in all likelihood, be approved.

It is also a good idea to appoint a secondary guardian in case age, illness, or death prevent the primary guardian from assuming responsibility when the time comes. This way, all bases are covered and you’ll know that your child is in good hands if anything happens to you.

Do You Have Questions About Guardianship in California?

At the Law Offices of Kayleene H. Writer, PLC, we commend you for taking the steps needed to protect your child’s future. We can explain how guardianship works in California and, if necessary, represent your chosen guardian in any future hearings on them. To learn more or schedule a consultation with Attorney Writer, please call (949) 353-6151 or contact us.