A Probate Guardianship is a court proceeding in which a legal guardian is appointed by the probate court to protect the person or estate of a minor. A Probate Guardianship suspends (but does not end, as in adoption) parental legal rights. Probate Guardianship is granted by the court if the court finds that it is “necessary or convenient”. Legally speaking, adoption is defined as the transfer of the parental rights of a child. Once an adoption is finalized, the adoptive parents are legally (and otherwise) the parents in every sense of the word.

Once a probate guardianship has been established for at least two years, the Probate Code authorizes the termination of parental rights if certain criteria are met. Probate Guardianship has long been an alternative to child protective services intervention for children whose parents are unavailable or unable to care for their children, or who fail to provide adequately for their children’s essential needs.

The California Probate Code 1516.5 is the basis of terminating parental rights and to convert a guardianship into a adoption. Under the Probate Code the overarching element that a guardian must prove to terminate parental rights is that the adoption would be in the best interest of the child. This is a less stringent standard than is typically required under the family code. Due to this less stringent standard it has been subject to constitutional challenges.

In March 2009, the California Supreme Court resolved two cases challenging the constitutionality of the 2003-enacted parental rights termination scheme in Probate Code section 1516.5, subdivision (a)(2) which permits termination when a child has been in the physical custody of a guardian for two years.

If you have current guardianship over a minor there are numerous factors to consider when deciding whether to seek adoption of the minor. As you can imagine adoption is very emotionally charged for all involved and if it is necessary to terminate parental rights in order to proceed with the adoption this can and will cause even more stress.

The Courts and California Legislature has made it easier to seek adoption after a guardianship has been in place for more than two years. Despite the legal aspects of the process, adoption has to be focused on the needs of the child rather than the needs and desires of the adults involved.

If you have guardianship of a minor that you desire to adopt you should consult a local attorney. In closing, every child deserves a loving and supportive home and thank you to everyone that provides such.

Jeremiah Raxter, Esq


Attorney at Law

27851 Bradley Rd, Suite 145

Menifee, Ca 92586


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