<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Mealer:
I am sorry. I gave her guardianship in 1998. I was living in IL for a few months already when she had a lawyer send me the papers to sign.
I had a copy of them and even looked at them a month ago with my son but they have turned up missing.
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My response:
You've got to read my posts to you very carefully, because I don't want this thread to be 20 responses in length. I didn't ask whether or not the papers were missing. Please, only answer what is asked of you, and no more. Now, please, read my post again.
Please remember, the following is California law. However, it is fairly standard in most states, so it should be helpful to you:
Termination of guardianship in favor of parent: The Probate Code - - and not the Family code laws - - governs the bases for terminating a nonparent's guardianship at the behest of a parent seeking to regain custody. Guardianship of Simpson (1998) 67 Cal.App.4th 914, 921, 79 Cal.Rptr.2d 389, 392]
Pursuant to the Probate Code, upon petition of the guardian, a parent or the child, the court may make an order ending the guardianship if either of the following conditions exists:
· it is "no longer necessary" that the child have a guardian; or
· it is in the child's "best interest" to terminate the guardianship. [Guardianship of Kassandra H. (1998) 64 Cal.App.4th 1228, 1230, 75 Cal.Rptr.2d 668, 669]
"No longer necessary" - - focus on overall parental fitness: The "no longer necessary" standard is not tantamount to a finding that returning the child to a parent's custody would not be detrimental to the child; nor is it merely synonymous with a finding of the child's "best interest." Rather, "no longer necessary" within the meaning of the Probate Code "necessarily requires a showing of overall fitness on the part of the natural parent seeking to end the guardianship sufficient to overcome the inherent trauma of removing a successful caregiver." [Guardianship of Kassandra H., supra, 64 Cal.App.4th at 1239-1240, 75 Cal.Rptr.2d at 675 (emphasis added)--fact natural father overcame alcoholism that had led to guardianship not sufficient to remove child from grandmother who had established exemplary nurturing relationship with child; Guardianship of Simpson, supra, 67 Cal.App.4th at 933, 79 Cal.Rptr.2d at 400]
In effect, this standard puts paramount importance on the need for stability and continuity in the child's living arrangement. [Guardianship of Kassandra H., supra, 64 Cal.App.4th at 1238-1239, 75 Cal.Rptr.2d at 674-675]
The Parent's burden of proof: The burden is not upon the guardian to establish the child would suffer detriment by being returned to the parent. Instead, the parent seeking custody bears the burden of showing his or her "overall fitness" as noted above. [Guardianship of Simpson, supra, 67 Cal.App.4th at 933, 79 Cal.Rptr.2d at 400]
The court in Kassandra H., supra, notes a concern that the "overall fitness" standard for returning custody to the parent might have the "unintended consequence of discouraging voluntary guardianships." Nonetheless, applying a more lenient test "would mean that the parent's interest in a right-of-retrieval would outweigh the child's interest in a stable and secure environment and--unless the Legislature is going to plainly say otherwise--there is no way that any court is going to put its imprimatur on that." [See Guardianship of Kassandra H., supra, 64 Cal.App.4th at 1240, 75 Cal.Rptr.2d at 675 (emphasis in original) (dictum)]
Get to your attorney FIRST THING ON JULY 5th to start revocation proceedings.
IAAL
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[This message has been edited by I AM ALWAYS LIABLE (edited July 02, 2000).]