The Standard for Normal Family Law Custody Modification Applies to a Petition for Termination of Guardianship

Father and mother, Don and Julie, had three children. Don had an alcohol problem. Julie had severe mental health problems that made her unable to care for herself or her children. After a domestic altercation involving the police, the two youngest children commenced living with their grandmother, Patricia, joining their third sibling already under Patricia’s guardianship. The Orange County family law court then appointed Patricia the guardian of the two youngest children as well. The Orange County family law court record shows undisputedly that Patricia did an “outstanding” job with all three children. Don eventually overcame his alcohol problem and his family law attorney sought to terminate the guardship on the ground that it was no longer necessary. The Orange County family law court granted Don’s Orange County attorney’s petition. It did so after applying the juvenile dependency law standard, finding that the guardianship termination would not be detrimental to the children. Patricia’s family law attorney filed an appeal.

What is the correct standard to apply in termination of guardianship cases? The applicable standard is the same as that used for modification of a custody order for a minor child, as in normal family law.  California’s Probate Code section 1601 states that a court may terminate a guardianship if the guardianship is “no longer necessary” or if the termination is in the child’s best interest. The “no longer necessary” language requires a showing of overall fitness by the natural parent seeking to end guardianship sufficient to overcome inherent trauma of removing a successful caregiver. In Guardianship of Davis (1967) the court explained that the “no longer necessary” language puts at issue the natural parent’s fitness to have custody and calls for examination of the facts under a totality of evidence.  In re Marriage of Whealon (1997) notes that the burden of proof rests on the party who seeks the custody change.

Here the Orange County family law court found that while Don had addressed the significant drinking problem, that itself was not dispositive of his fitness for custody. Don was essentially a stranger to the children, planned to raise them in a one bedroom apartment, made minimal to no plans for health care, education, nor daycare. On the other hand Patricia had done an exemplary job of raising the children and they had “an emotional, psychological bonding and nurturing relationship” with Patricia. Though eager and expressed that he was up to the challenge, Don failed to meet the requisite burden of proof to terminate the guardianship under the correct standard. The Court of Appeal located in Orange County determined that the record from the Orange County family law court had sufficient evidence to show that Don could not carry the burden of showing overall fitness, and directed the Orange County family law court to enter an order denying Don’s Orange County attorney’s petition for guardianship termination.

Guardianship of Kassandra H. (1998) 64 Cal.App.4th 1228