Faith Jansen Law & Mediation



Since the 1990's, an increasing number of minor children have ended up living with and being raised by their grandparents in a legal guardianship of minors. Often these grandparents started out as occasional childcare providers and then found their grandchild spending so much time with them that a long-term legal guardianship was needed to create stability. In other cases, the grandparents have had to abruptly step in on an emergency basis to protect the child from harm or endangerment caused by parental neglect. Grandparents in these types of situations need to get legal advice as early as possible.

To maximize the chances of success in a private guardianship case where the biological parents may object, it is extremely helpful if the persons filing the petition for guardianship (the petitioners) have already established a “defacto parent relationship” with the child. A defacto parent relationship is a psychological parent-child relationship that develops over time between a child and an adult who is not a biological parent. Legally recognized defacto parent status may result when the biological parents voluntarily leave the child in the care of another adult for a significant period of time (generally at least four months). In California, defacto parents may file a private guardianship petition in the probate court based on having developed a defacto parent-child relationship pursuant to California Family Code Section 3040(a)(2) which permits a child custody award to a non-parent “in whose home the child has been living in a wholesome and stable environment”. The defacto parent status creates a legal presumption that it would be detrimental to the child to remove him or her from the current physical custody of the defacto parent.

When grandparents cannot claim defacto parent status but want to get custody because they are concerned for the welfare of their grandchild, they may file a petition for private guardianship in the probate court alleging that custody with either parent is detrimental. In such cases the probate court judge may request a review by a juvenile court child protective services social worker in order to give the county the option of filing a petition in the juvenile court to make the child a ward of the state and offer reunification services to the parents. In any case where the juvenile court system intervenes, grandparents who want to avoid the risk of their grandchild being adopted by a non-relative should immediately contact the juvenile court social worker and request placement of the child with them. They may be required to become county certified foster-parents to qualify as custodians during the pendency of the juvenile court action, and they should do whatever is necessary to comply with county requirements as soon as possible. If the juvenile court social worker places the child in the custody of a non-relative foster-parent, that non-relative may acquire defacto parent status and thereby gain priority over the grandparents in the legal order of preference for adopting the child.

In private guardianship proceedings where the juvenile court has not intervened, a probate court investigator will act as the social worker interviewing all parties and writing a court report. Biological parents who object to the proposed guardianship have the right to a non-jury trial. While the probate court judge will not appoint a free attorney to represent the biological parents, he or she may appoint a Minor’s Counsel to represent the interests of the child.

Adoption in the juvenile court system usually takes more than two years because in most cases the parents are given at least 18 months of reunification social services as a precondition to the termination of their parental rights. No reunification services are offered in an adoption proceeding in which the juvenile court has not intervened. In all adoption actions, the court will appoint free legal counsel for a parent who cannot afford to hire an attorney unless that parent has failed to object after having been served with legal notice of the case. The adoption court may also appoint a Minor’s Counsel.

The advantage of the guardianship-to-adoption procedure is that it is the easiest way to terminate parental rights in a contested case. The usual legal standard for termination of parental rights requires proving that a return of custody to the biological parents would be detrimental to the child. In contrast, California Probate Code Section 1516.5 provides that parental rights may be terminated after two or more years of a general guardianship where the “court finds that the child would benefit from being adopted by his or her guardian”. This “benefit to the child” test is less stringent than the “detriment/unfitness” test which applies in all other types of adoption proceedings.

One disadvantage of private adoption is the cost of the state social services investigation and report which is required in guardianship-to-adoption cases as well as in all other types of non-juvenile court adoptions except step-parent adoptions and adult adoptions. California Family Code Section 8810 fixes the cost of the adoption investigation and report at $4,500. This report is required even in the case of an independent adoption where both parents consent to voluntarily terminate their parental rights.

Why do grandparents who already have a legal guardianship pursue adoption? One common reason is to get their grandchild covered on their health insurance policy. Another reason is that the adoption judgment is final, as compared to the order for general guardianship which is modifiable. In some guardianship cases, the biological parents periodically file motions to modify visitation or request termination of the guardianship, pulling the guardians back into the probate court on a regular basis. In these cases, the guardians may decide that the advantage of putting an end to the recurring litigation in the probate court is worth the expense of the adoption case.

Grandparents who have become their grandchild’s primary caretakers and are interested in guardianship or adoption should get a legal consultation with an attorney. Grandparents who are not presently the primary caretakers of their grandchild but are concerned for the child’s safety and welfare should immediately make a report to their local county child protective services office and also consult an attorney.


The Grandfamilies State Law and Policy Resource Center serves as a national legal resource in support of grandfamilies within and outside the child welfare system. It provides a searchable database of laws and legislation, summaries and comparisons of laws and legislation, personal stories, relevant resources and publications, and technical assistance. It is a collaboration of the American Bar Association’s Center on Children and the Law, Generations United, and Casey Foundation Family Programs.

This article discusses and compares laws across the United States related to grandparent adoption, guardianship and defacto parent custody rights.

The complete text of California Family Code Section 3040 is contained in this link which provides the text of Family Code Sections 3040 through 3049.

The complete text of California Family Code Section 8810 is contained in this link which provides the text of Family Code Sections 8800 through 8823.

The complete text of California Probate Code Section 1516.5 is contained in this link which provides the text of Probate Code Sections 1510 through 1517.

(Copyright 2014 by Faith Jansen. Faith Jansen, Attorney at Law, does juvenile guardianships, adoptions, divorce mediation, cooperative and collaborative divorce, pre-marital agreements, and post-marital agreements in Walnut Creek, Contra Costa County, California. See her website at: and find her on Facebook at Faith Jansen Attorney at Law.)