Indiana Guardianship Forms: Fill & Download for Free

I’m not that familiar with California family law (my training was in Indiana), but in essentially all US states, if the other legal parent is alive and has not been declared unfit, the children of that parent are legally in the custody of that parent and cannot be removed from that parent’s custody without either a finding of unfitness or a voluntary declaration of that parent. In this situation, because the children still have a surviving parent, that parent retains or acquires custody on the death of the other parent. The surviving parent is not a guardian, as a guardianship only arises if both of the child’s parents are unable or unwilling to act as parent. Since there is a parent available, there is no question of guardianship; custody transfers to the surviving parent until and unless that parent is determined to be unable or unwilling.Thus, the only way to have anyone else named as guardian is for the surviving parent to voluntarily agree to name someone else as guardian, or to have the surviving parent declared unfit (or unwilling) to be a parent by a court of competent jurisdiction.The mere fact that primary or sole custody was granted to the other parent in a divorce or custody proceeding is not sufficient to conclude that the surviving parent is unfit or unwilling; the question before a divorce court is not whether either parent is unfit, but rather which parent is more fit. When there is only one surviving parent, that parent is automatically the more fit parent, and can be removed from that role only by a determination of unfitness, which is a much more stringent standard.Most US states do not allow more distant relatives, friends, or anyone other than the legal parent of a child to supersede a legal parent unless the legal parent(s) either consents or are found unfit. California, to the best of my knowledge, is not an exception to this general rule. California provides for certain rights to grandparents, but a grandparent can petition for custody of a minor grandchild only if “the child's health, safety, and well-being are currently in danger due to the abuse or neglect of one or more parent”. More distant relatives and individuals unrelated to the child are similarly restricted in this regard.You should consult a California family law attorney for specific advice, but be warned that you will likely discover that you will not be able to supersede the other parent’s claim to custody if he or she wishes to pursue it and he or she is not manifestly unfit to act as parent. You are likely better off negotiating with the child(ren)’s other parent to achieve a result you can live with than trying to get that result through litigation.

It’s very touching that you’re keeping the child’s birth mother in mind. I’m a Court Appointed Special Advocate (CASA) and have rarely seen potential adoptive parents give a second thought to what the birth parent(s) may think. Most of the time, they want to change the child’s name so the birth parent(s) CAN’T track the child down later.That said, your question could be answered many different ways, depending on the state you live in. Where I am, in Indiana, adoption is always the preferred outcome for a child when they are with non-relatives. Adoption comes with continued benefits for the child, including health insurance and a monthly subsidy from the state. A guardianship does not offer any of those benefits, unless you are a relative and the child is older than 13. (Again, this may be different depending on your state.) Here, if birth parents are in the picture and have consented to an adoption rather than having their rights involuntarily terminated, an agreement can be drafted between the parties allowing for the birth parents to receive updates on the child or even see them occasionally.The thing to keep in mind with a guardianship is they are typically never “permanent.” If parental rights have already been terminated, that’s one thing, but if they have not been, birth parents could petition the court at any time to attempt to win back custody of the child. You would be looking over your shoulder until the child turned 18.As others have mentioned already, you do not need to change the child’s name. What I often see happen is the name IS changed, but the birth name is included. For example: Birth name is Jane Elizabeth Smith. Adoptive parents are Mr. and Mrs. Jones. Child’s new name becomes Emily Jane Smith-Jones.Also consider, it is more than likely your foster daughter has a permanent plan that has been approved by the court- my guess would be her plan now is adoption. For that to change, the child welfare agency would have to petition the court to change it to legal guardianship. As already mentioned, adoption is the preferred outcome for a child in certain situations because it offers the best permanency. The child welfare agency, court, and your foster daughter’s CASA or GAL if she has one, would have to be in agreement with moving from a permanent plan to a non-permanent plan. Based on your reasons for wanting to do so, I would guess that would not be met with enthusiasm.Lastly- once you adopt a child, you can do whatever you want. If you want to track down the birth mother and let her know you have adopted her child and send her yearly photos and updates, you totally can. If you want to help an adoptive child track down their birth parent when they are older, you can do that too!I hope this helps!