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Custody when both parents are deceased

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M

Maeryn

Guest
I am a divorced parent living in California. My ex-husband and I have agreed that there is no relative on his side of the family or mine that we would want to raise our children if by chance both of us die before our daughters are grown.

We are friends with a wonderful couple who are are very good parents. We would like them to raise our children if neither of us are living. Our kids will be the beneficiaries of insurance pmts, Social Security, etc, so we know some of the relatives will badly want control of the kids and their funds. Also, the couple we have chosen to have custody are lesbian. What legal process should we follow to make sure our wishes will be honored? What will happen if our families challenge our arrangement? Thank you very much.
 


I AM ALWAYS LIABLE

Senior Member
My response:

As you can imagine, this is an extremely complicated subject, with many twists and turns regarding "competing interests" among family, and non-family, members. I've tried, with this response, to give you as much information as possible. However, due to the complexity of this subject, now would be an excellent time to make arrangements for your children by seeing an attorney who can take in all of your particular information, and tailor a plan of strategy that fits the two of you and your proposed guardians - - in the event of tragedy. This is NOT an easy area of law, and you can expect family members to fight your appointment of the lesbians as guardians.


Child custody
In child custody cases between the parents, the court must make orders that foster the best interests of the child. [Fam C §§3022, 3040] While the issue of a parent’s sexual orientation may be considered by the court in custody or visitation cases, California appellate courts have determined that a parent’s homosexuality, standing alone, is not a sufficient ground for depriving that parent of custody or visitation. [In re Marriage of Birdsall (1988, 4th Dist) 197 Cal App 3d 1024, 243 Cal Rptr 287; Nadler v Superior Court of Sacramento County (1967, 3d Dist) 255 Cal App 2d 523, 63 Cal Rptr 352]
Child custody cases involving homosexual parents may also arise in the context of guardianship petitions or child abuse and neglect proceedings. In these types of situations, someone other than the child’s parent seeks to remove the child from the homosexual parent. In such cases, the person or entity seeking removal has the burden of proving that the current living situation is detrimental to the child, and that it would be in the child’s best interests to be placed with the proposed guardian or out of the home. [See W & I C §§300 et seq., Prob C §1514]

There is only one reported case involving a contested child custody proceeding between a homosexual parent and a nonparent. [See Chaffin v Frye (1975, 2nd Dist) 45 Cal App 3d 39, 119 Cal Rptr 22] In that case, the court of appeal awarded guardianship of a lesbian mother’s children to the maternal grandmother. While the court clearly noted the mother’s sexual orientation as a factor that it considered, additional reasons were articulated for granting the guardianship. [Chaffin v Frye (1975, 2nd Dist) 45 Cal App 3d 39, 119 Cal Rptr 22]

If the homosexuality of a parent is to be used as a basis for denying custody or visitation or for placing restrictions on those rights, such as excluding the presence of a partner, the person seeking to restrict parental rights has the burden of making an affirmative showing of harm to the child. [In re Marriage of Birdsall (1988, 4th Dist) 197 Cal App 3d 1024, 243 Cal Rptr 287]

Child’s best interest
The best interest of the child is the overriding concern in custody determinations under the Family Code. The health, safety, and welfare of children are the court’s primary concern in determining the best interests of children when making orders regarding their custody and visitation. [Fam C §3020(a)] The perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. [Fam C §3020(a)] On the other hand, Fam C §3020(b) declares the public policy of assuring children frequent and continuing contact with both parents after a marital separation or dissolution, and encouraging the parents to share in child-rearing. In the event that these policies set forth in Fam C §3020(a) and (b) are in conflict, a court’s order regarding custody or visitation must be made to ensure the health, safety, and welfare of the child and the safety of all the family members. [Fam C §3020(c)]California declares the public policy of assuring minor children frequent and continuing contact with both parents after a marital separation or dissolution, and encouraging the parents to share in child-rearing, except where contact with both parents would not be in the child’s best interest. [For further discussion of parent-child contact, see § 4:61] And Fam C §3040 establishes an "order of preference according to the best interest of the child" among potential candidates for assuming custody [Fam C §3040(a)], while allowing "the court and the family the widest discretion to choose a parenting plan which is in the best interest of the child" [Fam C §3040(b); for further discussion of the order of preference, see § 4:58]

In determining where the child’s best interest lies, the court may consider any factors it finds relevant. [Fam C §3011] Various factors that the courts, or the Legislature, have found to be relevant or irrelevant are considered in the following sections of this text.
Family Code §3011 requires consideration of three four factors in every case: the child’s health, safety and welfare [Fam C §3011(a)]; any history of domestic abuse abuse by a parent or any other person seeking custody [Fam C §3011(b); see § 4:62]; the nature and amount of contact with both parents [Fam C §3011(c); see § 4:61]; and the illegal use of substances or the habitual or continual abuse of alcohol by either parent. [Fam C §3011(d)] Unless the parties have stipulated in writing or on the record regarding custody or visitation, when allegations about a parent’s history of abuse or habitual or continual use of controlled substances or alcohol [See Fam C §3011(d)] have been brought to the attention of the court in the current proceeding, the court that makes an order for sole or joint custody to such parent must state its reasons in writing or on the record. Also, under these circumstances, the court must ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as required under Fam C §6323(b). [Fam C §3011(e)]

The question of the child’s best interest is determined solely from the standpoint of the child; the feelings and desires of the contestants are not considered except to the extent they affect the child’s best interest. [Re Marriage of Russo (1971, 1st Dist) 21 Cal App 3d 72, 98 Cal Rptr 501] It is reversible error to base a custody award on considerations other than what is best for the child. [Re Marriage of Stoker (1977, 2nd Dist) 65 Cal App 3d 878, 135 Cal Rptr 616 (reversing award based on coercive conduct of one parent toward the other)]

In Adoption of T. (1975, 1st Dist) 44 Cal App 3d 699, 117 Cal Rptr 856, 84 ALR3d 654, the court made the following general observations on the best interest standard under the predecessor to Fam C §3011: "The 'best interest of the child' is an elusive guideline that belies rigid definition. Its purpose is to maximize a child’s opportunity to develop into a stable, well-adjusted adult. . . Furthermore, the concept of 'best interest' presents a relative standard. The question is not whether a particular set of circumstances is in the best interest of the child, but whether a particular set of circumstances relative to an alternative set of circumstances is in the best interest of the child."

Burden of proof
Generally, in contested custody proceedings proof by a preponderance of the evidence is required to show that the requested award is in the child’s best interest. [Ev C §115]
This general rule is subject to the following qualifications and presumptions:

(1). Where the parents agree to an award of joint custody, there is a presumption affecting the burden of proof that joint custody is in the best interests of the child. [Fam C §3080]

(2). A nonparent seeking custody, as against a parent, must prove by clear and convincing evidence that an award to the parent would be detrimental to the child. [Fam C §3041; Guardianship of Phillip B. (1983, 1st Dist) 139 Cal App 3d 407, 188 Cal Rptr 781]

(3). A party seeking to modify a prior final custody order must prove that there has been a substantial change in circumstances such that a change of custody is in the child’s best interest. [In re Marriage of Lewin (1986, 4th Dist) 186 Cal App 3d 1482, 231 Cal Rptr 433]

(4). In the absence of a prior custody order, where custody was lawfully acquired and maintained for a significant period, the noncustodial parent has the burden of proving that a change in custody is in the child’s best interest (no changed circumstances need be shown, however). [Burchard v Garay (1986) 42 Cal 3d 531, 229 Cal Rptr 800, 724 P2d 486, 62 ALR4th 237 (§ 4:64)]

(5). A party opposing parental visitation has the burden of proving that visitation would be detrimental to the best interests of the child. [Simek v Superior Court of San Mateo County (1981, 1st Dist) 117 Cal App 3d 169, 172 Cal Rptr 564]

(6). When grandparent visitation is an issue in a marital termination proceeding, and the parties to the marriage agree that a grandparent should not be awarded visitation rights, there is a rebuttable presumption affecting the burden of proof that grandparent visitation is not in the child’s best interest. [Fam C §3101(b)]

(7). Visitation rights regarding a minor child may not be granted to a nonparent other than a grandparent or stepparent over the joint opposition of parents with custody of the child, unless it is clearly and convincingly shown that denial of visitation would be detrimental to the child. [In re Marriage of Gayden (1991, 1st Dist) 229 Cal App 3d 1510, 280 Cal Rptr 862]

The California Supreme Court, in its decision reversing the appellate court, addressed the issue of the burden of proof in an initial custody determination or in a post-judgment modification when one of the parents seeks to move with the child. [In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473] The Court in Burgess, is relatively clear in stating that at either an initial determination, or, if there is an order for joint physical custody, it is necessary to establish that the move is in the child’s best interests. In either situation there must be a de novo hearing to determine the child’s best interests. Thus, each parent has the burden of establishing where the child’s best interests lie.

What is less clear in Burgess, is whether such a de novo hearing is required when there is an order for joint custody but the parents have not in fact adhered to their joint custodial arrangement. [See In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473, footnote 12 (a de novo hearing may be required when parents share joint physical custody . . . under an existing order and in fact, and one parent seeks to relocate with the minor children) (emphasis added)]

The court in Burgess apparently holds that when a parent with sole physical custody seeks to move with the child he or she has the right, pursuant to Fam C §7501 "to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." The impact of this ruling is that the parent who opposes the move has the burden of proving that it is not in the child’s best interest to move.

These rulings have potentially anomalous results for cases in which the actual custodial arrangement bears no relation to the wording of the order for custody, for example, the parents have an order for "joint physical custody" but one of the parents has the child eighty percent of the time and takes all responsibility for doctor appointments, school meetings, etc. or the order gives the mother sole physical custody but over time the parents have created an arrangement in which the child spends forty percent of her time with the father and the father and mother share responsibility for taking the child to her appointments, etc. In the first example because the wording of the order is for "joint custody" Burgess requires a de novo hearing to determine the child’s best interests whereas in the second example where the actual arrangement, but not the written order, is joint custody and time sharing, the father has the burden of proving that the child’s "rights or welfare will be prejudiced" by the mother’s proposed move.

The appellate court in Brody v. Kroll, following the directive of footnote 12 of Burgess, held that if there is an order for joint physical custody but one of the parents is designated as the primary physical custodian, there must be a de novo hearing to determine the child’s best interests if one of the parents seeks to move with the child. [Brody v. Kroll (1996, 4th Dist.) 45 Cal.App.4th 1732, 53 Cal.Rptr.2d 280]

In a further effort to clarify how Burgess should be applied, the appellate court in Marriage of Whealon, discussed what it referred to as the "Burgess footnote 12-Brody exception" to the Burgess decision and held that because the facts presented in Whealon did "not involve substantive (i.e. actual) joint physical custody" the parent objecting to the move-away had the burden of proving that the changed circumstances of the move were not in the child’s best interests and, therefore, required a change of custody. [In re Marriage of Whealon (1997, 4th Dist.) 53 Cal.App.4th 132, 61 Cal.Rptr.2d 559] The inference to be drawn from Brody and Whealon seems to be that the courts should look to the substance of the custodial arrangement rather than the wording of the most recent order in determining which parent has the burden of proof in a move-away case.

The court must order physical or legal custody according to the best interests of the child as provided in California in the following order of preference [Fam C §3040(a)]:

(1). To both parents jointly [see Fam C §3080], or to either parent.
In making its order granting custody to either parent, the court must consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent consistent with Fam C §3031. [Fam C §3040(a)(1)] The court may not prefer a parent as the custodial parent because of the parent’s sex. [Fam C §3040(a)(1)]

(2). If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

(3). To any other person or persons the court deems suitable and able to provide adequate and proper care and guidance for the child.

California makes it clear that "[t]his section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody," but leaves the court and the family wide discretion to choose an arrangement that is in the child’s best interest. [On statutory presumption in favor of joint custody where parents agree to it]

Award to nonparent
Before granting custody to a nonparent without the parents’ consent, the court must find both that granting custody to a parent would be detrimental to the child, and that the award to a nonparent is necessary to serve the child’s best interest. Allegations that parental custody would be detrimental may not appear in the pleadings, except for a statement of that ultimate fact. The court has discretion to exclude the public from the hearing on the detriment issue. [Fam C §3041]

In Re G. (1974) 11 Cal 3d 679, 114 Cal Rptr 444, 523 P2d 244, the court analyzed at length the 1969 enactment of CC §4600, which formerly contained the provisions now in Fam C §3041, and concluded that while the Legislature had altered the judicially developed parental preference doctrine by changing the focus from the unfitness of the parent to the detriment to the child, it did not intend to disturb the judicial practice of awarding custody to nonparents in preference to parents only in unusual and extreme cases. The court required a clear showing that an award to the nonparent "is essential to avert harm to the child," not merely a finding that the award will promote the child’s best interest. Thus, the nonparent bears the burden of proving by clear and convincing evidence that an award to the parent would be detrimental to the child. [Guardianship of Phillip B. (1983, 1st Dist) 139 Cal App 3d 407, 188 Cal Rptr 781]

The following circumstances have been held sufficient to establish the detriment necessary for an award of custody to a nonparent:

(1). The father was an unemployed high school student whose social and sexual relationships and academic record demonstrated lack of maturity and judgment, another custody change might be necessary if he moved out of his mother’s house, and in the testimony of an expert that it would be detrimental to remove the infant child from his prospective adoptive parents’ home, where he had been thriving for 5 months. [Michael U. v Jamie B. (1985) 39 Cal 3d 787, 218 Cal Rptr 39, 705 P2d 362]

(2). The parents made a calculated decision to remain emotionally and physically detached from their developmentally disabled son (the mere fact that they had institutionalized him was not a factor), and had refused to consent to recommended heart surgery. [Guardianship of Phillip B. (1983, 1st Dist) 139 Cal App 3d 407, 188 Cal Rptr 781]

(3). A psychiatrist’s testimony supported the trial court’s finding that it would be detrimental to take the child from the home of a de facto parent with whom he had lived for 7 years, and award custody to a parent with whom he had had very little contact. [Re Volkland (1977, 2nd Dist) 74 Cal App 3d 674, 141 Cal Rptr 625; see also Re Reyna (1976, 5th Dist) 55 Cal App 3d 288, 126 Cal Rptr 138 (error to refuse offer of proof as to psychological harm that would result from taking child from prospective adoptive parents)]

(4). The mother could not control the child and his antisocial behavior, which was greatly affected by his negative interaction with her. [Re B. (1976, 3rd Dist) 62 Cal App 3d 89, 132 Cal Rptr 720]

On the other hand, a finding that the father’s custody would not be detrimental to his children was affirmed even though the father was in prison for murdering his ex-wife, the children’s mother, in Re M. (1976, 4th Dist) 65 Cal App 3d 254, 135 Cal Rptr 222. The court noted that the trial court could reasonably find that the crime was one of passion, and did not constitute neglect of or cruelty toward the children, even though it deprived them of their mother’s love and care.

In determining which nonparent should receive custody, the court is required to "consider and give due weight to" a parent’s nomination of a guardian under Prob C §§1500 et seq. [Fam C §3043; see PROBATE Probate Guardianships Ch 26] Such a nomination must be given "substantial consideration." [Guardianship of Donaldson (1986, 5th Dist) 178 Cal App 3d 477, 223 Cal Rptr 707] And, as noted in the previous section, preference must be given to nonparents who have provided a "wholesome and stable" home over others who might be deemed suitable candidates for custody. [Fam C §§3040(a)(2), 3040(a)(3)]

Parental nomination of guardian
A parent may nominate a guardian of the person or estate, or both, of a minor child in either of the following cases [Prob C §1500; see Prob C §1514 (effect to be given to nomination); see also Fam C §3043 (nomination of person by parent in proceeding where custody of minor child is at issue); see also Prob C §2108 (providing for powers of guardian in the nomination of guardian)]:

(1). Where the other parent nominates, or consents in writing to the nomination of, the same guardian for the same child; or

(2). Where, at the time the petition for appointment of the guardian is filed, either the other parent is dead or lacks legal capacity to consent to the nomination, or the consent of the other parent would not be required for an adoption of the child.
Under Prob C §1500, only a parent may nominate a guardian for the person or estate of a minor child. A "parent" under this statute would also include an adoptive parent. [See Fam C §§8316, 9305] Nominations from other relatives of the child, while possibly persuasive to the court, are not authorized under the statute.

Guardian for particular property
A parent or any other person may nominate a guardian for all or some specified property that a minor receives from or by designation of the nominator. The property subject to the guardianship may be property that the minor receives before, at the time of, or after the nomination. The property may include, but is not limited to, property received by the minor by virtue of a gift, deed, trust, will, succession, insurance, or benefits of any kind. [Prob C §1501] This means that a person may nominate a guardian for the proceeds of a life insurance policy owned by the nominator on the life of the nominator or on the life of a person surviving the nominator. [Law Revision Commission Comments to Prob C §1501]

The provisions of Prob C §1501 may allow a nomination that would not be allowed under Prob C §1500. For example, a parent may attempt to nominate a general guardian of the estate of a child under Prob C §1500, only to find the nomination invalid because written consent of the other parent cannot be obtained. That same nomination may nevertheless satisfy the requirements of Prob C §1501 and permit appointment of a guardian with respect to the property of the nominating parent that the child takes from the nominating parent.

Manner of nomination of guardian
The manner of nomination of a guardian for a minor child, the child’s estate, or particular property of the minor child is governed by Prob C §1502. According to Prob C §1502(a), the nomination of a guardian may be made in the petition for the appointment of the guardian [Prob C §1510], at the hearing on the petition [Prob C §1511], or in a writing signed either before or after the petition for the appointment of the guardian is filed. The nomination of a guardian is effective when made, unless revoked. However, a writing making a nomination may specify one or more conditions, the occurrence of which is necessary to make the nomination effective. The kinds of conditions that may be specified include, but are not limited to, the subsequent legal incapacity or death of the person making the nomination. [Prob C §1502(b)] The death or subsequent lack of legal capacity of the person making the nomination does not render the nomination ineffective, unless the writing making the nomination expressly so provides. [Prob C §1502(c)]

Nomination of a guardian is usually made in the parent’s will. However, if the parent is terminally ill and there is concern about incapacity prior to death, the nomination should be prepared as a separate document. If there is an expectation of objections to the parent’s choice, the nomination should provide some information regarding the reason for the parent’s decision. This may prove helpful to the court in making a determination on the appointment of a guardian.

The nomination may specify powers that the guardian of the person and estate may exercise without court authorization. [See Prob C §2108(a) and (b)] Subject only to good cause exceptions, the court in its order appointing a guardian of the estate will, to the extent provided in the nomination, approve independent exercise of the powers listed in Prob C §2591. In the case of a guardian nominated under Prob C §1501, such additional authority must be limited to the property covered by the nomination. [Prob C §2108(b); see also Prob C §2105(f), which provides a procedure for appointment of the custodial parent and a person nominated by the custodial parent as joint guardians when the custodial parent is terminally ill]

Effect of previous appointment of guardian
If, before January 1, 1981, a parent or other person has in a signed writing appointed a person to serve as the guardian of the minor or the minor’s estate, or as the guardian of the property the minor receives from or by designation of the person making the appointment, that appointment will be considered to be a nomination of a guardian if the requirements of Prob C §1500 or Prob C §1501 are satisfied. The appointment will be treated as if it had been a nomination made on or after January 1, 1981, under Prob C §1500 or Prob C §1501. [Prob C §1489]

It is irrelevant whether the signed writing is a will or deed, so long as the person signing the writing had sufficient capacity to form an intelligent preference at the time the writing was signed. [Prob C §1489] This ensures that appointment of a testamentary guardian made under former Prob C §1402 or Prob C §1403 will be given effect as a nomination under Prob C §§1500 and 1501.

A principal may nominate, by a durable power of attorney, a guardian of the person or estate or both for consideration by the court if protective proceedings for the principal’s person or estate are thereafter commenced. [Prob C §4126(a)]

Procedure for Appointment of Guardian
Petition for appointment
A relative of a minor, another person acting on behalf of the minor, or the minor, if the minor is 12 years of age or older, may file a petition for the appointment of a guardian. [Prob C §1510(a)] The petition must request that a guardian of the person or estate of the minor, or both, be appointed. In addition, the petition must specify the name and address of the proposed guardian and the name and date of birth of the proposed ward, and must state that the appointment is necessary or convenient. [Prob C §1510(b)]
So far as known to petitioner, the petition must set forth the names and addresses of [Prob C §1510(c)]:

(1). The parent or parents of the proposed ward;

(2). The person having legal custody of the proposed ward, and, if that person does not have the care of the proposed ward, the person having the care of the proposed ward;

(3). The relatives of the proposed ward within the second degree;

(4). In the case of a guardianship of the estate, the spouse of the proposed ward; and

(5). Any person nominated as guardian for the proposed ward under Prob C §1500 or Prob C §1501.

If the petitioner knows that the proposed ward is a patient in or on leave of absence from a state institution under the jurisdiction of the State Department of Mental Health or the State Department of Developmental Services, the petition must state that fact and name the institution. [Prob C §1510(d)]

The petition must also state, so far as is known to the petitioner, whether the proposed ward is receiving or is entitled to receive benefits from the Veterans Administration. If the proposed ward is receiving or is entitled to receive benefits, the petition must state the estimated amount of the monthly benefit payable by the Veterans Administration for the proposed ward. [Prob C §1510(e)] If the petitioner knows of any pending adoption, juvenile court, marriage dissolution, domestic relations, custody, or other similar proceeding affecting the proposed ward, the petition must disclose the pending proceeding. [Prob C §1510(f)]

If the petitioner has accepted or intends to accept physical care or custody of the child with the intent to adopt, no matter when that intent was formed, the petitioner must state that intent in the guardianship petition. This requirement is imposed regardless of whether an adoption petition has actually been filed. [Prob C §1510(g)] If the proposed ward is or becomes the subject of an adoption petition, the court will order consolidation of the guardianship petition with the adoption petition. [Prob C §1510(h)]
The Judicial Council of California has approved a number of forms relating to guardianships. Some, such as the petition and order for appointment, have been approved for use in either guardianships or conservatorships. In most counties, use of the Judicial Council , these forms is mandatory. In addition, some counties may by local rule require use of certain Judicial Council forms or guardianship forms that they have developed. Note that effective January 1, 2000, the Judicial Council adpopted all probate forms (DE-111 through DE-350 and GC-202-GC-385 for mandatory use. In addition to requirements regarding forms, individual counties often have specific rules or practices relating to guardianships. Counsel should consult local rules before filing a petition for appointment of a guardian to be certain that all local rules and requirements have been satisfied.

Mandatory amendment of petition
In order to make a proper determination regarding guardianship, the court must be aware of any other proceeding that may affect the custody of the proposed ward. Therefore, within 10 days after the petitioner in the guardianship proceeding becomes aware of any proceeding that was not disclosed in the guardianship petition and that affects the custody of the proposed ward, the petitioner must amend the guardianship petition to disclose the other proceeding. Other proceedings that could affect custody include any adoption, juvenile court, marriage dissolution, domestic relations, or other similar proceeding affecting the proposed ward. [Prob C §1512; see also Prob C §1510(h) (consolidation of guardianship petition with adoption petition)]

Notice of hearing
At least 15 days before the hearing on the petition for the appointment of a guardian, notice of the time and place of the hearing must be given. The court may not shorten the time for giving notice of the hearing. The notice must be accompanied by a copy of the petition. [Prob C §1511(a)]
Since the court has no discretion to shorten the 15-day notice period, emergency situations will necessitate appointment of a temporary guardian.

Notice must be served in the manner provided in CCP §415.10 (personal service) or CCP §415.30 (service by mail) or in any manner authorized by the court on [Prob C §1511(b)]:

(1). The proposed ward if 12 years of age or older;

(2). Any person with legal custody of having , or serving as the guardian of the estate of, the proposed ward;

(3). The parent or parents of the proposed ward; and

(4). Any person nominated as a guardian for the proposed ward under Prob C §1500 or Prob C §1501.

Notice must be given by mail sent to the addresses stated in the petition, or in any manner authorized by the court, to all of the following [Prob C §1511(c)]:

(1). The spouse named in the petition;

(2). The relatives named in the petition (however, if the petition is for the appointment of a guardian of the estate only, the court may dispense with the giving of notice to any one or more or all of the relatives); and

(3). The person having the care of the proposed ward, if this is someone other than the person having legal custody of the proposed ward.

If notice is required by Prob C §1461 or Prob C §1542 to be given to the Director of Mental Health or the Director of Developmental Services or the Director of Social Services, notice must be mailed as required by those provisions. [Prob C §1511(d)] If the petition states that the proposed ward is receiving or is entitled to receive benefits from the Veterans Administration, notice must be mailed to the office of the Veterans Administration that is referred to in Prob C §1461.5. [Prob C §1511(e)]

Unless the court orders otherwise, notice must not be given to [Prob C §15111(f)]:
(1). The parents or other relatives of a proposed ward who has been relinquished to a licensed adoption agency; or

(2). The parents of a proposed ward who has been judicially declared free from the custody and control of the parents.

If the court so orders, the notice need not be given to any person on a determination that either the person cannot with reasonable diligence be given the notice, or that the giving of the notice would be contrary to the interest of justice. [Prob C §1511(g)]
Before the appointment of a guardian is made, proof must be made to the court that each person entitled to notice either has been given notice, or has not been given notice because the person cannot with reasonable diligence be given the notice or because the giving of notice to that person would be contrary to the interest of justice. [Prob C §1511(h)]

In each case involving a petition for guardianship of the person, the petitioner must mail a notice of the hearing and a copy of the petition, at least 15 days prior to the hearing, to the local agency designated by the board of supervisors to investigate guardianships for the court. [Prob C §1516(a)] The provisions of Prob C §1516(a) do not apply to guardianships resulting from the permanency planning for a dependent child pursuant to W & I C §366.26 W & I C §366.25. [Prob C §1516(b)].

Under Prob C §1511(g), the court may dispense with notice to certain persons if they cannot with reasonable diligence be given notice, or if doing so would be contrary to the interests of justice. When the petitioner is aware of such circumstances from the outset, the petition should include a request for an order dispensing with notice (the Judicial Council Petition for Appointment includes this request). If not included in the petition, the request can be made separately. Local court rules should be consulted for the proper procedures. To prevent delay in the appointment of a guardian, the request should be made prior to the hearing on the petition. If the request is approved, an Order Dispensing with Notice (Judicial Council Form GC-021) should be obtained.

Investigation and report
Unless waived by the court, a court investigator, probation officer, or domestic relations investigator may make an investigation and file a report and recommendation with the court concerning each proposed guardianship of the person or of the estate. When the proposed guardian is a relative, investigations must be made by a court investigator. Where the proposed guardian is a nonrelative, investigations must be made by the county agency designated to investigate potential dependency. [Prob C §1513(a)] For purposes of Prob C §1513, a "relative" means a person who is a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix "grant" or "great," as well as the spouse of any of these persons. The definition applies even if the marriage which created the relationship is terminated by death or dissolution. [Prob C §1513(g)]

The report for the guardianship of the person must include, but need not be limited to, an investigation and discussion of [Prob C §1513(a)]:
(1). A social history of the guardian.

(2). A social history of the proposed ward, including, to the extent feasible, an assessment of any identified developmental, emotional, psychological, or educational needs of the proposed ward and the capability of the petitioner to meet those needs.

(3). The relationship of the proposed ward to the guardian, including the duration and character of the relationship, where applicable, the circumstances whereby physical custody of the proposed ward was acquired by the guardian, and a statement of the proposed ward’s attitude concerning the proposed guardianship. The statement need not be included if the attitude of the proposed ward is affected by the proposed ward’s developmental, physical, or emotional condition.

(4). The anticipated duration of the guardianship and the plans of both natural parents and the proposed guardian for the stable and permanent home for the minor. The court may waive this requirement for cases involving relative guardians.

The report will be read and considered by the court prior to ruling on the petition for guardianship, and must be reflected in the minutes of the court. The person preparing the report may be called and examined by any party to the proceeding. [Prob C §1513(b)]
If the investigation finds that any party to the proposed guardianship alleges that the minor’s parent is unfit as defined by W & I C §300, the case must be referred to the county agency designated to investigate potential dependencies. Guardianship proceedings will be considered incomplete until the investigation required by W & I C §§328 and 329 is finished and a report is provided to the court in which the guardianship proceeding is pending. [Prob C §1513(c)]

The report is confidential and may be made available only to people who have been served in the proceedings or their attorneys. The county clerk must make provisions to limit the availability of the report only to those designated people. [Prob C §1513(d)]
In order to prepare the report, the person making the investigation must be allowed access to the proposed ward’s school records, probation records, and public and private social services records, and to an oral or written summary of the proposed ward’s medical records and psychological records prepared by any physician, psychologist, or psychiatrist who made or who is maintaining those records. The physician, psychologist, or psychiatrist must be available to clarify information regarding these records. [Prob C §1513(e)]

In each case involving a petition for guardianship of the person, the local social services agency providing child protection services must screen the name of the guardian for prior referrals of neglect or abuse of minors. The results of this screening must then be provided to the court. [See Prob C §1516(a)]
Local practice varies widely with respect to waiver of an investigation. It is therefore difficult to generalize about circumstances that constitute a basis for a waiver. Local rules should be consulted to determine the practice in individual counties.
If the petition for guardianship states that an adoption petition has been filed, a report with respect to the suitability of the proposed guardian must be filed with the court by the agency investigating the adoption. [Prob C §1543(a)] In other cases, the local agency designated by the board of supervisors to provide public social services must file a report with the court with respect to the proposed guardian. This report must be of the same character as a report required to be made with regard to an applicant for foster family home licensure. [Prob C §1543(a)] The report is confidential. [Prob C §1543(b)]

Expense of investigation and review
Each county will annually assess the parents or other person charged with the support and maintenance of the proposed ward, and the guardian, proposed guardian, or the estate of the proposed ward, for expenses for any investigation or review conducted by the court investigator, probation officer, or domestic relations investigator incurred pursuant to Prob C §1513. A county may waive any or all of an assessment against the guardianship on the basis of hardship. [Prob C §1513.1(a); see also Gov C §6102]
There is a rebuttable presumption that an assessment would impose a hardship if the ward is receiving Medi-Cal benefits. [Prob C §1513.1(a)]

Oath and bond; letters
A guardian, like a conservator, is required to take an oath and file the required bond before the appointment is effective. [Prob C §§2300 et seq.] Letters of guardianship cannot be issued until the required bond has been filed. [See Prob C §23900(b)] However, if the person making the nomination has waived the filing of the bond, a guardian nominated under Prob C §1500 or Prob C §1501 need not file a bond unless required by the court. [Prob C §2324] Although no bond is required for the appointment of a guardian of the person only, the court has the discretion to order one. [Prob C §2322]

The appointment, taking of the oath, and filing of the bond, if required, will be evidenced by the issuance of letters by the clerk of the court. [Prob C §2310]
The order appointing a guardian or conservator must state in capital letters on the first page of the order, in at least 12-point type, the following [Prob C §2310(b)]:
WARNING: THIS APPOINTMENT IS NOT EFFECTIVE UNTIL LETTERS HAVE ISSUED.

Hearing on petition for appointment
At the hearing on the petition, if it appears necessary or convenient, the court may appoint a guardian for the person of the minor, or the estate of the minor, or both. [Prob C §1514(a)] In appointing a guardian for the person of the minor, the court is governed by the provisions of Fam C §§3020 et seq. and §§3040 et seq., relating to custody of a minor. [Prob C §1514(b)] Therefore, if a person is to be appointed as guardian of both the minor’s person and estate, these Family Code requirements, which are incorporated by reference into Prob C §1514(b), apply. [See, for example, Guardianship of Marino (1973, 2nd Dist) 30 Cal App 3d 952, 106 Cal Rptr 655 (these provisions apply to any proceeding where the custody of minor is at issue, including a guardianship proceeding)]

These Family Code provisions require that in any proceeding where the custody of a minor is at issue, the court may, during or after the proceeding, make an order for the custody of the minor that the court determines is necessary and proper. [Fam C §3022] The court is required to consider and give due weight to the wishes of the minor in making a custody award if the minor is old enough and has the capacity to reason so as to form an intelligent preference as to custody. [Fam C §3042(a)] If custody is to neither parent, the court is required to consider and give due weight to the nomination of a parent for a guardian of the person of the minor. [Fam C §§3040(a), 3043] The order of preference for custody according to the best interest of the minor is [Fam C §3040(a)]:
(1). First to both parents jointly, or to either parent with due consideration given to which parent is more likely to allow frequent and continuing contact with the noncustodial parent; then

(2). To the person or persons in whose home the minor has been living in a wholesome and stable environment; and then

(3). To any other person or persons the court deems suitable and able to provide adequate and proper care and guidance for the minor.
In Guardianship of Stephen G. (1995, 1st Dist) 40 Cal.App.4th 1418, 47 Cal.Rptr.2d 409, the court held that a clear and convincing evidence standard applies to a non-parent’s attempt to be appointed guardian over a parent’s objections. The court reached the same conclusion in Guardianship of Jenna G. (1998) 63 Cal.App.4th 387, 74 Cal.Rptr.2d 47. Both decisions specifically rejected Guardianship of Diana B. (1994) 30 Cal.App.4th 1766, 36 Cal.Rptr.2d 447

The court must appoint the guardian nominated under Prob C §1500 insofar as the nomination relates to the guardianship of the estate, unless the court determines that the nominee is unsuitable. [Prob C §1514(c)] The court must appoint the person nominated under Prob C §1501 as guardian of the property covered by the nomination, unless the court determines that the nominee is unsuitable. If the person appointed is appointed only as a guardian of the property covered by the nomination, the letters of guardianship must indicate that fact. [Prob C §1514(d)]

The court will be guided by what appears to be in the best interest of the minor, taking into account the proposed guardian’s ability to manage and to preserve the estate, as well as the proposed guardian’s concern for and interest in the welfare of the minor. If the minor is old enough to form an intelligent preference as to the person to be appointed guardian, the court must consider that preference in determining Fam c § 3042the person to be so appointed. [Prob C §1514(e); see also Fam C § 3042 Fam C §3042(a); Guardianship of Kaylee J. (1997) 55 Cal.App.4th 1425, 64 Cal.Rptr.2d 662 (once a general guardian is appointed, court has no authority to consider restoration of custody to parent until petition for termination of guardianship of person has been filed)]

No guardian of the person may be appointed for a minor who is married or whose marriage has been dissolved. This does not apply in the case of a minor whose marriage has been nullified. [Prob C §1515] Further, the rule in Prob C §1515 does not preclude appointment of a guardian of the estate of a married minor.

A general guardian of the estate may serve with a guardian as to particular property nominated under Prob C §1501. In these circumstances, the authority of the guardian nominated under Prob C §1501 will be limited to control of the property covered by the nomination. The guardian of the estate manages and controls the balance of the guardianship estate. [Prob C §2109(b)]

Except to the extent the court for good cause determines otherwise, if a guardian of the person is nominated by a parent pursuant to Prob C §1501 and is appointed by the court, the order appointing the guardian must, to the extent provided in the nomination, grant the same authority with respect to the person of the minor as a parent having legal custody of a child. [Prob C §2108(a)] The guardian may exercise that authority without notice, hearing, or court authorization, instructions, approval, or confirmation in the same manner as if the authority were exercised by a parent having legal custody of a child. [Prob C §2108(a)]

Except to the extent the court for good cause determines otherwise, when a guardian of the estate is nominated by a parent pursuant to Prob C §1500, or a guardian for property is nominated by a parent or any other person pursuant to Prob C §1501, and is appointed, the order appointing the guardian must, to the extent provided in the nomination, grant the guardian the right to exercise independently any one or more of the powers listed in Prob C §2591 (powers that may be granted under independent exercise of powers). [Prob C §2108(b)]

The powers granted pursuant to Prob C §2108(b) may be exercised without notice, hearing, or court authorization, instruction, approval, or confirmation as if granted pursuant to an order under Prob C §2590 for independent exercise of powers. In the case of a guardian nominated as to particular property [Prob C §1501], the additional authority is limited to property covered by the nomination [Prob C §2108(b)]. Additionally, the powers are subject to Prob C §2593 (withdrawal or subsequent limitation of powers), Prob C §2594 (contents of letters), and Prob C §2395 (use of other statutory authorization or procedures not precluded). [Prob C §2108(b)]
If the guardian is granted authority for independent exercise of powers pursuant to Prob C §2590, these powers should be specifically listed in an attachment to the letters of guardianship. The list of powers in the letters of guardianship should be identical to the list of these powers in the order appointing the guardian.

Nonrelative Guardianships
Applicable statutory provisions
Probate Code §§1540–1543 set forth additional requirements for appointment of a guardian who is not a relative of the minor. However, these provisions do not apply in the following circumstances [Prob C §1540]:
(1). When the petition is for guardianship of the estate exclusively;

(2). When the proposed guardian is a relative of the minor;

(3). When the Director of Developmental Services is appointed guardian pursuant to H & S C §§416 et seq.;

(4). When the director of the department designated by the board of supervisors to provide social services is appointed guardian;

(5). When the public guardian is appointed guardian; or

(6). When the guardianship results from a permanency plan for a dependent child pursuant to W & I C §366.26 W & I C §366.25.

Additional contents of petition
In addition to the other required contents, the petition for appointment of a guardian must include [Prob C §1541]:
(1). A statement by the proposed guardian that, on the request of an agency referred to in Prob C §1543 (report on suitability of guardian) for information relating to an investigation, the proposed guardian will promptly submit the information required;

(2). A disclosure of any petition for adoption by the proposed guardian of the minor who is the subject of the guardianship petition, regardless of when or where filed [see also Prob C §1510(f) (requiring petitioner with knowledge of pending adoption, juvenile court, marriage dissolution, domestic relations, custody, or other similar proceeding affecting minor to disclose the pending proceeding in petition)]; and

(3). A statement as to whether the home of the proposed guardian is licensed as a foster family home.
Section 15 of the Judicial Council Form for Appointment of Guardian of Minor [GC-210] provides the information required by Prob C §1541. The form directs that the item is to be completed if the petition is not one for appointment of a guardian of the estate only, and was filed by a person who is not related to the minor and has not been nominated as guardian by a parent under Prob C §1500. The form is confusing because, unlike the statute, it refers to the "petitioner" rather than the "proposed guardian." Also, the exception for a parental nomination under Prob C §1500 is no longer consistent with Prob C §1540. Presumably, the Judicial Council form will be amended to conform to the statute.

Two recent cases have identified factors relevant to the appointment of a non-parent as guardian. In Guardianship of Z.C.W. (1999) 71 Cal.App.4th 524, 84 Cal.Rptr.2d 48, review den. (Jul 21, 1999) and cert. den. (U.S. 1999) 120 S.Ct. 603, the court determined that, absent clear and convincing evidence that parental custody was detrimental, there was no basis for appointing as guardian the former lesbian lover of the biological mother of two children. The court concluded that the existence of a de facto parental relationship with the children while the biological mother and her lover were living together did not create any grounds for establishment of a guardianship after the relationship ended. In Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 86 Cal.Rptr.2d 7, review den. (Sept 22, 1999), the court acknowledged that in appointing a guardian it was governed by the Family Code provisions relating to custody of a child. However, the court determined that a child’s interest in remaining in a stable and permanent environment overrode the priority for parental custody set forth in the Family Code. The court rejected the parent’s argument that the federal Constitution required a showing of parental unfitness before appointment of a non-parent as guardian.

Notice to designated parties
In each case involving a petition for guardianship of the person, the Director of Social Services and the local agency designated by the board of supervisors to investigate guardianships for the court must be given notice. At least 15 days prior to the hearing, the petitioner must mail a notice of the hearing and a copy of the petition to the Director of Social Services at the director’s office in Sacramento and to the local agency that investigates guardianships for the court. [Prob C §1542; see also Prob C §§1260–1265 (proof of giving notice)]

Report on suitability of guardian
If the petition as filed or amended states that an adoption petition has been filed, a report concerning the suitability of the proposed guardian for guardianship must be filed with the court by the agency investigating the adoption. In other cases, the local agency designated by the board of supervisors to provide public social services must file a report with the court concerning the proposed guardian. The report should be of the same character as that required to be made for an applicant for foster family home licensure. [Prob C §1543(a)]

The report filed with the court remains confidential. The report may be considered by the court and will be made available only to those persons who have been served in the proceeding and those persons who have appeared in the proceeding or their attorneys. The report may be received in evidence on stipulation of counsel for all those persons present at the hearing or, if a person is present at the hearing but is not represented by counsel, on consent of that person. [Prob C §1543(b)]

Good luck to you.

IAAL
 
G

Grandma B

Guest
I'll be there. I read and memorized every freakin' word!

And here I thought he was just trying to catch up to jyoung in having the longest post.
 
M

Maeryn

Guest
I do appreciate the attempt to help. However, I didn't see anything there that actually applied to my situation. I realize that at some point in this process we'll need to involve an attorney, but the less time and expense I have to commit to that, the better.

Next time I check on a post, I'll bring my Star Trek Universal Translator to tackle the Legalese. If we're really having a test on this, I'm scr***d!
 

LegalBeagle

Senior Member
IAAL first paragraph really summed this up. Once both parents dies, it kinda becomes a free for all. Who wins custody will come down to many factors. There is no 100% sure way to ensure that this couple gain custody on your deaths.

The rest of IAAL post gave you information and cases that have dealt with issus simular to yours and should help you understand how judges have ruled in the past.

[Edited by LegalBeagle on 06-25-2001 at 10:51 PM]
 

I AM ALWAYS LIABLE

Senior Member
My response:

Oh, my goodness !

The whole enchillada, above, applies or could apply, to your potential situation. I'm afraid there really is no other way to express the law, except in legalese. I told you it's complicated. While it is a rarity to find something in the law that is "exactly" on point for a particular situation, the law takes this into account and it's the "penumbra" of the law that takes precedence.

Some parents think that it's only a matter of placing a term or condition in a Will - - but, they would be totally incorrect. When both parents die, either at the same time, or one and then the other, the court immediately has jurisdiction over the children, which is why such matters are handled through the Probate court.

Perhaps, it would be a good idea to see an attorney to have this whole matter boiled down for you. I am glad to read that you are thinking of the "what if's" for the sake of your children's future.

Good luck to you.

IAAL

[Edited by I AM ALWAYS LIABLE on 06-25-2001 at 10:54 PM]
 

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