How do I get guardianship of my grandson until my son moves back to town?
Full Question:
My grandchild is one year old and is in CA.The parents are not married. The mother has a history of drug addiction. She is fresh out of a detox institution. My son is willing for me to take the child and bring him to AZ to care for him, as he plans to move here within months. How can I accomplish this immediately as the mother is likely to flee to Mexico with my grandson?
10/05/2007 |
Category: Guardianship |
State: Arizona |
#9754
Answer:
The following California statutes are as follows:
§ 1500 Prob.
Subject to Section 1502, a parent may nominate a guardian of the
person or estate, or both, of a minor child in either of the
following cases:
(a) Where the other parent nominates, or consents in writing to the
nomination of, the same guardian for the same child.
(b) Where, at the time the petition for appointment of the guardian
is filed, either (1) the other parent is dead or lacks legal capacity
to consent to the nomination or (2) the consent of the other parent
would not be required for an adoption of the child.
§ 1502 Prob.
(a) A nomination of a guardian under this article may be made in
the petition for the appointment of the guardian or at the hearing on
the petition or in a writing signed either before or after the
petition for the appointment of the guardian is filed.
(b) The nomination of a guardian under this article is effective
when made except that a writing nominating a guardian under this
article may provide that the nomination becomes effective only upon
the occurrence of such specified condition or conditions as are
stated in the writing, including but not limited to such conditions
as the subsequent legal incapacity or death of the person making the
nomination.
(c) Unless the writing making the nomination expressly otherwise
provides, a nomination made under this article remains effective
notwithstanding the subsequent legal incapacity or death of the
person making the nomination.
§ 1510 Prob.
(a) A relative or other person on behalf of the minor, or the minor if
12 years of age or older, may file a petition for the appointment of a
guardian of the minor.
(b) The petition shall request that a guardian of the person or estate
of the minor, or both, be appointed, shall specify the name and address
of the proposed guardian and the name and date of birth of the proposed
ward, and shall state that the appointment is necessary or convenient.
(c) The petition shall set forth, so far as is known to the
petitioner, the names and addresses of all of the following:
(1) The 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.
(5) Any person nominated as guardian for the proposed ward under
Section 1500 or 1501.
(6) In the case of a guardianship of the person involving an Indian
child, any Indian custodian and the Indian child's tribe.
(d) If 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 and that
fact is known to the petitioner, the petition shall state that fact and
name the institution.
(e) The petition shall state, so far as is known to the petitioner,
whether or not the proposed ward is receiving or is entitled to receive
benefits from the Veterans Administration and the estimated amount of the
monthly benefit payable by the Veterans Administration for the proposed
ward.
(f) If the petitioner has knowledge of any pending adoption, juvenile
court, marriage dissolution, domestic relations, custody, or other
similar proceeding affecting the proposed ward, the petition shall
disclose the pending proceeding.
(g) If the petitioners have accepted or intend to accept physical care
or custody of the child with intent to adopt, whether formed at the time
of placement or formed subsequent to placement, the petitioners shall so
state in the guardianship petition, whether or not an adoption petition
has been filed.
(h) If the proposed ward is or becomes the subject of an adoption
petition, the court shall order the guardianship petition consolidated
with the adoption petition.
(i) If the proposed ward is or may be an Indian child, the petition
shall state that fact.
§ 1511 Prob.
(a) Except as provided in subdivisions (f) and (g), 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 shall be given as provided in
subdivisions (b), (c), (d), and (e) of this section. The notice shall be
accompanied by a copy of the petition. The court may not shorten the time
for giving the notice of hearing under this section.
(b) Notice shall be served in the manner provided in Section 415.10 or
415.30 of the Code of Civil Procedure, or in any manner authorized by the
court, on all of the following persons:
(1) The proposed ward if 12 years of age or older.
(2) Any person having legal custody of the proposed ward, or serving as
guardian of the estate of the proposed ward.
(3) The parents of the proposed ward.
(4) Any person nominated as a guardian for the proposed ward under
Section 1500 or 1501.
(c) Notice shall be given by mail sent to their addresses stated in the
petition, or in any manner authorized by the court, to all of the
following:
(1) The spouse named in the petition.
(2) The relatives named in the petition, except that 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.
(3) The person having the care of the proposed ward if other than the
person having legal custody of the proposed ward.
(d) If notice is required by Section 1461 or Section 1542 to be given
to the Director of Mental Health or the Director of Developmental
Services or the Director of Social Services, notice shall be mailed as so
required.
(e) If the petition states that the proposed ward is receiving or is
entitled to receive benefits from the Veterans Administration, notice
shall be mailed to the office of the Veterans Administration referred to
in Section 1461.5.
(f) Unless the court orders otherwise, notice shall not be given to any
of the following:
(1) The parents or other relatives of a proposed ward who has been
relinquished to a licensed adoption agency.
(2) The parents of a proposed ward who has been declared free from
their custody and control.
(g) Notice need not be given to any person if the court so orders upon
a determination of either of the following:
(1) The person cannot with reasonable diligence be given the notice.
(2) The giving of the notice would be contrary to the interest of
justice.
(h) Before the appointment of a guardian is made, proof shall be made
to the court that each person entitled to notice under this section
either:
(1) Has been given notice as required by this section.
(2) Has not been given notice as required by this section 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.
(i) If notice is required by Section 1460.2 to be given to an Indian
custodian or tribe, notice shall be mailed as so required.
§ 1513 Prob.
(a) Unless waived by the court, a court investigator, probation
officer, or domestic relations investigator may make an investigation and
file with the court a report and recommendation concerning each proposed
guardianship of the person or guardianship of the estate. Investigations
where the proposed guardian is a relative shall be made by a court
investigator. Investigations where the proposed guardian is a nonrelative
shall be made by the county agency designated to investigate potential
dependency. The report for the guardianship of the person shall include,
but need not be limited to, an investigation and discussion of all of the
following:
(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, unless the statement of the
attitude 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 child. The court may waive this requirement for cases
involving relative guardians.
(b) The report shall be read and considered by the court prior to
ruling on the petition for guardianship, and shall be reflected in the
minutes of the court. The person preparing the report may be called and
examined by any party to the proceeding.
(c) If the investigation finds that any party to the proposed
guardianship alleges the minor's parent is unfit, as defined by Section
300 of the Welfare and Institutions Code, the case shall be referred to
the county agency designated to investigate potential dependencies.
Guardianship proceedings shall not be completed until the investigation
required by Sections 328 and 329 of the Welfare and Institutions Code is
completed and a report is provided to the court in which the guardianship
proceeding is pending.
(d) The report authorized by this section is confidential and shall
only be made available to persons who have been served in the proceedings
or their attorneys. The clerk of the court shall make provisions for the
limitation of the report exclusively to persons entitled to its receipt.
(e) For the purpose of writing the report authorized by this section,
the person making the investigation and report shall have 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 shall be
available to clarify information regarding these records pursuant to the
investigator's responsibility to gather and provide information for the
court.
(f) This section does not apply to guardianships resulting from a
permanency plan for a dependent child pursuant to Section 366.26 of the
Welfare and Institutions Code.
(g) For purposes of this section, 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 "grand" or "great," or the spouse of any
of these persons, even after the marriage has been terminated by death or
dissolution.
(h) In an Indian child custody proceeding, the person making the
investigation and report shall consult with the Indian child's tribe and
include in the report information provided by the tribe.
§ 1514 Prob.
(a) Upon hearing of the petition, if it appears necessary or
convenient, the court may appoint a guardian of the person or estate
of the proposed ward or both.
(b) In appointing a guardian of the person, the court is governed
by Chapter 1 (commencing with Section 3020) and Chapter 2 (commencing
with Section 3040) of Part 2 of Division 8 of the Family Code,
relating to custody of a minor.
(c) The court shall appoint a guardian nominated under Section 1500
insofar as the nomination relates to the guardianship of the estate
unless the court determines that the nominee is unsuitable.
(d) The court shall appoint the person nominated under Section 1501
as guardian of the property covered by the nomination unless the
court determines that the nominee is unsuitable. If the person so
appointed is appointed only as guardian of the property covered by
the nomination, the letters of guardianship shall so indicate.
(e) Subject to subdivisions (c) and (d), in appointing a guardian
of the estate:
(1) The court is to be guided by what appears to be in the best
interest of the proposed ward, 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 proposed ward.
(2) If the proposed ward is of sufficient age to form an
intelligent preference as to the person to be appointed as guardian,
the court shall give consideration to that preference in determining
the person to be so appointed.
§ 1516.5 Prob.
(a) A proceeding to have a child declared free from the custody and
control of one or both parents may be brought in the guardianship
proceeding pursuant to Part 4 (commencing with Section 7800) of Division
12 of the Family Code, if all of the following requirements are
satisfied:
(1) One or both parents do not have the legal custody of the child.
(2) The child has been in the physical custody of the guardian for a
period of not less than two years.
(3) The court finds that the child would benefit from being adopted by
his or her guardian. In making this determination, the court shall
consider all factors relating to the best interest of the child,
including, but not limited to, the nature and extent of the relationship
between all of the following:
(A) The child and the birth parent.
(B) The child and the guardian, including family members of the
guardian.
(C) The child and any siblings or half-siblings.
(b) The court shall appoint a court investigator or other qualified
professional to investigate all factors enumerated in subdivision (a). The
findings of the investigator or professional regarding those issues shall
be included in the written report required pursuant to Section 7851 of
the Family Code.
(c) The rights of the parent, including the rights to notice and
counsel provided in Part 4 (commencing with Section 7800) of Division 12
of the Family Code, shall apply to actions brought pursuant to this
section.
(d) This section does not apply to any child who is a dependent of the
juvenile court or to any Indian child.