It is an inside joke among child advocates that the laws proposed on behalf of children are ever doomed to failure, because children don’t vote. That isn’t completely true, as advocates can count a number of victories over the years, but I will say that the almighty dollar generally prevails before the plight of children.
Still, the legislature has tried to weave a safety web, despite its deficiencies, where children are concerned. In particular, the law tries to assure that children always have the supervision and care of an adult.
I know what you’re thinking — many kids would be better off without certain adults around. Witness the Neanderthal dads who dangle their children out of moving car windows or much worse.
That makes me think of another tongue-in-cheek lament: If you have to have a license to have a dog, why can’t we require a license before having a child? Well, the obvious answer is that the U.S. Constitution doesn’t allow such big-brother actions, and you simply can’t screen for who would be a good parent or a bad parent. Where would you draw the line?
This, of course, prompts another question. What happens to children when parents simply cannot or will not care for them?
We have all read about the group homes and foster homes, but in my experience most children end up with relatives, often Grandma or Grandpa. Is it necessary for the law to get involved if a relative is willing to step in for a negligent parent? Not really, assuming that it is general neglect and not abuse; but without some legal intervention, you’ll have a tough time getting the child enrolled in school or getting medical treatment.
There is the guardianship procedure, which I mention below, but child advocates recognized years ago that many relatives didn’t want to go through the process. That left the child unprotected and possibly uneducated, so about 20 years ago the legislature agreed to a Caregiver’s Authorization Affidavit that allows whoever is taking care of the child to enroll that child in school and consent to school-related medical care. If you are a “qualified” relative, you can also consent to other medical care. It’s a simple form you can find, fill out and present to school or medical professionals if you look up Family Code 6552.
A more formal process is guardianship, which requires a court investigation and hearing.
Old-timer lawyers tell me that in the distant past, guardianships were largely used by parents who had to be, for example, overseas for a period of time. With the overwhelming majority of guardianships I’ve done, however, Mom is on drugs and Dad is either unknown or gone forever. As I said, it’s usually Grandma or Grandpa to the rescue.
A guardianship does not terminate parental rights. It just gives the guardian the right to make virtually all decisions for the child until the parent can return or can finally assume the role of parent. The child is not automatically returned to the parents upon a parent becoming responsible. The parent has to ask the court to terminate the guardianship and demonstrate that it is best for the child.
Usually, the parents don’t contest the guardianship, but I’ve done a few contested procedures, and it can get ugly. Drug-addled mothers can love their children just as much as teetotalers. Having a child taken away can lead to quite a scene in court.
A court investigator is always required to do background checks, interview everyone, look at the potential placements and give a recommendation to the court. The court is supposed to rule based upon the best interests of the child. Although I have heard of a court ruling against the court investigator’s recommendation, it has never happened in any of my cases.
Ultimately, the goal is to assure that a child is safe with a nurturing environment. Whether that actually happens is another story, but the Caregiver’s Authorization Affidavit and guardianship are two of the methods the law has to try to assure that a child is protected.
- Gary Redenbacher of Scotts Valley is an attorney in private practice. Email him at firstname.lastname@example.org