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Being a Legal Guardian

Berkeley Parents Network > Advice > Parenting, Families, & the Community > Being a Legal Guardian


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How can I get guardianship of my grandchildren?

April 2008

I'm looking for advice regarding how I can get guardianship of my 3 very young grandchildren. The children have been living with me pretty much since they were born. There have been brief, very brief, periods of time when my daughter lived in her own home, but for the most part they have all lived with me.

I was in the middle of getting my BA from UCB, but my daughter put an end to that for me. The problem is that she keeps vanishing and leaving me to deal with her children. I had to drop my classes because I was left with the kids and had no one to take care of them when she took off.

At the present time, I am trying to find a job so that I can support us. I don't want my daughter in my home any more and I don't know how I can keep her out. I am willing to be the guardian of my grandchildren, but I don't know how to do it. I don't know if I can get guardianship of the kids since I am unemployed.

I've tried legal aid and the bar association. Neither can help me now. I can not get the preschool child registered for school (K this fall) nor can I take any of the kids to the doctor because I am not their legal guardian. I don't know where else to turn to for advice.

What I do know is that I am tired of dealing with my daughter coming in and out of my home and leaving me to deal with the kids by myself. She needs to get help for her drug/alcohol problems, but she refuses to admit that she has a problem.

Does any one have any advice for me? I am so ashamed to be in this situation, but I am at my wits end and could use any advice at all. Laura


Try Legal Asistance for Seniors, they serve all of Alameda County and have an office in Oakland. Their website is www.lashicap.org, phone number for Oakland office 510-832-3040.

If you don't qualify for their services you can do it yourself by petitioning the probate court in Alameda County for Guardianship. I would suggest purchasing a book on how to file for Guardianship in pro per (without a lawyer) from Nolo Press, a legal do-it-yourself book publisher in Berkeley (you can go to their store on Parker Street in Berkeley, or order online or even get it at Barnes and Noble). Their books are very user friendly, explain the whole process and usually have the forms you need in the book. If you get the petition filed, the court will work with you, many of the people in family/probate court are not represented by attorneys, the courts are used to this and they are usually pretty patient with people. You will have to give notice of the petition to your daughter and the kids' father and any adult siblings, grandparents, aunts and uncles. As long as no one contests it, which seems doubtful from what you describe, it will be straight forward. A court investigator will interview you, visit your home, talk to the children, the court may appoint a lawyer to represent the children. Even if someone does contest it, don't panic, see it through it will come out the way it should. Once you have legal guardianship I believe that you can apply to social services for benefits for the children as a ''non-needy caregiver.'' Good luck. anon


If you live in Alameda County, you may qualify for the Volunteer Legal Service Program of the Alameda County Bar Assoication. They offer guardinaship clinics where they help you prepare your own case and also provide referrals to attorneys who will take your case for free or low cost. Their website is www.acbanet.org. A
Hi Laura, In my profession I frequently speak with loving grandparents like yourself who are in the bind of caring for their grandchildren without a legal agreement. It's great you're trying to do things the right way. I first recommend that you ask your daughter to write out an agreement allowing you to take the children for medical care should they need it. Get this notarized. Also, ask her to enroll the older child in school. Secondly, explain that you'd like her to sign over temporary guardianship of the children to you. The best approach would be to say that it's to help her as she is not in a position to care for the children currently. This can be done through probate court. If she does not agree to signing over custody, file in probate court for guardianship and they will make a determination as to what's in the best interest of the children. Once you are granted guardianship, you may be eligible for financial assistance (ask the court about this). Please take care of this right away, your grandchildren deserve it! Remember, you're not really rescuing your daughter by letting her do this, you're only allowing her to continue this pattern. Bless you!
I have mediated guardianship disputes through the courts but am not certain how to begin the process. I don't know where you live, however, it might help to contact Conflict Resolution Programs in Pleasant Hill and ask to speak to the person in charge of the guardianship mediation program. CRP is the community-based mediation organization which provides free mediators. Best of luck - you are not alone; most of the cases I've seen are similar to your experiences. I hope it all works out for you and the children. Contact: Barbara Proctor, Program Director 925.687.8844 x250 barbara@chd-prevention.org http://www.chd-prevention.org/guardianshipmediation.htm Signed, c
If you are serious about pursuing legal guardianship, check out the state court's self-help website about it:

http://www.courtinfo.ca.gov/selfhelp/family/guardianship/

There also is a nonprofit organization in Alameda County called Legal Assistance for Seniors that does grandparent guardianships. They may be able to you help you. Check out:

http://www.lashicap.org/services/legal-services/grandparent-guardianships

You have to show the court that 1) guardianship is in these children's best interest and 2) that you are the right person to be guardian. There will be a home visit, a criminal background check (of you), and an investigation from a court investigator. Obviously the stability of your own situation would always be an issue, but that doesn't mean you have to live in a mansion. If the children have a history of being in your care and are clean, clothed, and fed--those are great beginnings. There are resources such as non-needy relative caregiver support (or possibly need-based in your situation if you have no income) that can help as well.

Good luck! a court investigator from another county


Are you age 50 or over? If so, contact Legal Assistance for Seniors. They handle guardianships for grandchildren. They are in Oakland at 832-3040. Good luck. Debbie
Have you called Legal Services for Children in San Francisco? They have a hotline you can call. At best, they will take your case, for free. At worst, they will give you information on how to do a guardianship yourself. Google them for their phone and address. A children's attorney

Dying sister-in-law wants us to adopt her 13-y-o daughter

March 2004

Our family has just learned that my sister-in-law, L., has pancreatic cancer. She may have 6 to 12 months to live. Her husband was killed in an acident 8 years ago, so she is the single parent. Her 13 year old daughter (only child) has epilepsy and a severe developmental delay. This is unbearable bad news, and I really need some advice quick. L. has a sister, and it will be either me (and my husband and 2 young boys) or L.'s sister who will adapt the daugher. It is L. strong will that I adapt her daughter, because L. and her sister have had a very rocky past. While I am willing and able to do this, I feel her sister is really a better choice because she lives in the area (so daughter would not have to leave everything familiar), and has 4 grown daughters of her own that have a great realationship with the daughter. Also, they are of the same culture as L., and i would not be able to provide any of this cultural richness. How do we all, as a family and of course including L., decide what is best for the daughter? What type of person can help us with this? Social workers? Psychologist? Daughter's doctors? School? What legal issues do we need to deal with, such as adpot or become legal gaurdians before or after mothers death? And, if anyone has adopted a teenage disabled girl, do you have any advice or considerations? And also, I am in my 40s and have been through cancer twice with my parents generation, but never with someone my age, let alone a single parent. Is there anything I can say or do that would help L. feel better, at least for a few moments? It seems so hopeless and so sad. We are all really in shock and cannot believe this is really happening, but I am so worried for the daughter- who will have lost both parents! Thank you for any help. Mom in shock


I'm surprised that in your otherwise thoughtful note about whether to adopt your niece you missed the most important difference between your family and the other potential family. The points you made about geography and culture are valid, but -- You have two small children. The impact of bringing another child, especially one with medical and emotional issues, into your home would have a huge impact on them. If Lynne's sister is willing to take the daughter into her home, where all the kids are grown and gone and she can get the attention she is going to desperately need to survive this tragedy -- its sort of irrelevant whether the two grown ups have a rocky relationship. In your home your niece would be an after-thought, and a big one. Please remind Lynne that its all about whats best for the girl, not any of the grownups involved. Good luck to you in dealing with this sad situation. Heather
My heart goes out to your family at this time of such terrible news. Your disabled niece is probably a recipient of services from the Regional Center serving her city/county (i.e. the Regional Center of the East Bay, or Golden Gate Regional Center) - she should have a casemanager who would be able to help find out about and access the many resources you now need. Regional Center services are free, and they can purchase for your niece many other services. If she isn't already a Regional Center client, she should be eligible and you'll want to get the ball rolling asap. You might try her school (special education teacher?) as well to find out who are the advocates already working with her and to find out more about services available to her. Kristina
Your story has touched my heart on so many levels. I would suggest calling Lucia Milburn who works with children and disability issues, at the Parent Infant Program 510-428-3408 or her private practice number 510-540-5138. She could probably see you or at least point you in the right direction. Also, the Family Resource Network 510-547-7322 will have referrals. BEST of luck to you. Anon.
Boy this is a whammy! My heart goes out to Lynne and her daugther! I am a mother too and to have that happen to you and to be forced to leave your child like that is just too great an injustice..

You did not say what sort of developmental disability the daughter suffers from.. Is she capable of taking care of her daily needs (eating, walking, etc..)? I think that the arrangement might differ based on the disability.. It sounds cold but what about the financial angle? Are you financially able to take care of her? A big factor here should be what the daughter(if she is able to make that decision)wants. Make sure that her mother, with help from the family, sets up a trust or something like that for the girl so that she is at least financially supported. Whereever she ends up, atleast she won't also be considered a financial liability.. I am so sorry for you her and Lynne. I would suggest talk to an estate planner to cover the financial angle. And go with what the girl wants for guardianship.. I think that if she really wants to go live the Lynne's sister, Lynne would probably come around to it. Kids ! don't generally like adults unless they are liked back. My two cents.. Best wishes Life can be so unfair sometimes


If both, her sister and you are willing to raise the 13 year- old daughter - can't the daughter have a choice? Can she have a tryout based on her choice and the right to change her mind? Of course, the focus has been and will be on Lynne as she is dying. But she is not the only victim. Her daughter lost her dad, now she will lose her mom, and then the daughter will live on with the consequences. Can she possibly have some choice about her future? Can this all be settled and talked through while her mom is still alive? Anonymous
Regarding the legal aspects of your situation with your niece: once the difficult decision is made about who she will live with, one good way to handle the legalities of it is for the future caretakers to talk to an attorney about setting up a joint guardianship (also known as a co-guardianship). This is, essentially, a legal status that allows two things to happen simultaneously: the mother's parental rights continue and the new guardian also has legal rights to the child. This can all be set up ahead of time, so the guardian can step in and care for the child whenever the mom is not feeling well enough to care for her, and the child can move into the new home after her mother's death without any additional court processes or paperwork. If this is set up, an adoption can take place later (after the child has been living with the guardians for some time). There may be advantages to doing the adoption sooner, but a joint guardianship allows the dying parent to legally remain as a parent for as long as she possibly can, which may be better, emotionally, for everyone. I wish you luck on this very difficult situation! anon
What a painful situation. A few resources that might help: 1) The Women's Cancer Resource Center in Berkeley or Oakland has several different programs. I believe they have pro bono or low fee legal advice regarding guardianship and related issues. You should check with them at 510-420-7900.

2) The Mother's Living Stories Project ''brings compassion, support in parenting, and dignity to mothers living with cancer while raising children by helping them record life stories and living legacies.'' A highly trained ''listener'' works with the mother to process her parenting-related issues in order to put together a legacy of her life for her child when she's gone. The listeners are quite booked but the Director, Linda Blachman, said they may have someone available in Berkeley/Oakland or Danville/LaMorinda to help Lynne record her story and give some support. There is no charge for these services. Linda couldn't promise, but was deeply moved by Lynne's situation and said you should call her at the Project at 510-466-5053.

3) The Project has published a Parenting Through Cancer Resource Guide that's available for viewing on their web site at http://www.motherslivingstories.org. Their video documentary of mothers and listeners is also moving and uplifting. There are so few parenting-specific resources for mothers with cancer. I would encourage those concerned about this to make a tax-deductible donation to the Mothers Living Stories Project at 2011 Cedar, Berkeley 94109 to help keep their doors open and further this remarkable work. Lenore


Becoming the guardian of cousin's 10-year-old

April 2003

My husband and I are discussing whether to foster a 10-year-old son of a cousin of mine. This boy has not had a stable family life from the get-go. Now changes have occured in his life that make it possible to bring him to live with my family. Physically and logistically we can do it. We have the financial means and we have the room in our house. The big deal for my husband and I is, ''Do we want the drama?'' It sounds harsh, but we are concerned about how bringing in this boy, with all of his emotional needs, into our nice secure little family of four (we have two kids under 5). Past experience has shown that this boy's family is emotionally and physically abusive. Both my husband and I grew up in dysfunctional families and we escaped from that cycle. We would prefer to keep our children out of it. We are concerned that if we foster this boy, we will become inudated with hassle and drama from his family.

What to do? I feel like helping this little boy but I am also concerned with the effect it will have on my kids. I would appreciate similar experiences people have had and how it affected your family (both good and bad). Thank you. Anon


I highly recommend Virginia Keeler-Wolf. She is a psychotherapist who specializes in kids with attachment disorders, which sounds' like what you would be dealing with. My advice would be not to take on a child like your cousin without having expertise on how to work with him, which Virginia can give you. You might also just want to meet with her and talk about what you might expect, and whether you want to become foster parents to this boy.

I applaud your good-heartedness in thinking about giving this child a loving home. Another Mom


In making your decision, it may be helpful for you to hear about our experience.

In 1994, my partner's teenage niece attempted suicide after living in an alcoholic dysfunctional family for many years. At the time, we had no children of our own so we had an extra bedroom plus out of everyone in the extended family, we lived closest to the community where she attended high school.

We made the decision to ask her to live with us because we were convinced that providing a safe haven for her so she could complete high school and go on to college was paramount and, honestly, we were terrified that the next attempt at suicide would be successful.

During the five years she lived with us, we dealt with many of the issues step parents and/or foster parents live with:

(1) divided loyalty on the part of the child between dysfuntional/irresponsible bio parents and foster parents who are doing the actual day-to-day work of parenting. (If my niece's parents insisted on seeing her on major holidays, we felt obliged to agree for her sake but also felt unappreciated and hurt)

(2) divided loyalties on your part as you parent someone who you may not know or trust as much as your own children. (I often felt more comfortable disciplining my own children and sometimes felt that they respected/loved me more because they were mine)

(3) Potential conflicts within your own extended family. (We felt obliged to spend almost every Christmas with my partner's extended family and my niece's bio dad who we deeply resented was there too because we didn't want our foster kid to have to choose BETWEEN parents on major holidays)

Professional couseling, lots of tears, lots of communication during family meetings, and faith/hope that it would work out in the end kept us going.

My niece/foster kid is a wonderful adult now and we are great friends. She will be attending graduate school this fall.

It was maddening, exhausting, and exhilarating parenting someone who needs so much love and nurturing but it is the thing I am most proud of having done. anon


I appreciate your e-mail and understand the complex situation you and your family are in. I am a Marriage & Family Therapist and I contract to a Foster Family Agency as a Behavior Modification Specialist for kids ''at risk'' of losing their placements. In short, I am glad you and your family are asking for input and assistance in making this decision, especially since you have young children at home. As you know, any change in a family system is potentially difficult and one that will require a lot of time and attention is bound to effect everyone. It is not impossible, however. My best suggestion is to have the social worker help if you decide to become his guardian. You have much more room for negoitation before placement than after. For example, whatever extra services you think will be helpful (like counseling, etc..) is best talked about before. Also, I imagine you will need to parent him differently than you parent your own children. This would also be helpful to have in place before he comes and lives with you. What I mean is to have clear and consistent boundaries and rules, which may be stricter than you would normally have, especially in the beginning.

I would be happy to discuss this further with you, if you would like more detail. My best to you and your family. Cindy


Becoming a legal guardian for 14 year old niece

Sept 2002

I have taken in my 14 year old niece and would like some advice on legal guardianship. Her parents are divorced and are not contributing to her living expenses. I would like to add her to my health insurance and apply for any financial assistance available while she is under my care at least until her parents can get their act together. Does anyone out there know what I can do to seek legal guardianship? anonymous


Please contact Legal Services for Children in San Francisco. http://www.lsc-sf.org/ Their web-site has lots of information about all sorts of options for kids, including guardianship, emancipation and more informal arrangements. All services are free. LSC only represents children and will follow their wishes, not yours, even if you are right and the kid's in fantasy land. If your neice wants you to be her guardian, then LSC will help both of you through the system.

Again, this service is for kids. Please don't call for a child custody modification order. You will be sent to the Bar Association referral number. Best wishes for a happy home. Jenifer


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