Under California law, a custodial parent who is diagnosed with a terminal condition, as confirmed by a physician is eligible to nominate a standby guardian. Such a parent can nominate a guardian for his/her child. A nomination for appointment of the guardian may be made-
- In the petition for the appointment of the guardian or at the hearing on the petition.
- In writing signed either before or after the petition for the appointment of the guardian is filed.
The law of California permits joint guardianship of the child. Therefore the court may appoint the custodial parent and a person nominated by the custodial parent may also be appointed as joint guardians of the child.
The nomination of the guardian becomes effective when made or upon the occurrence of a specified condition/ conditions. These conditions may include subsequent legal incapacity or death of the person making the nomination.
The non custodial parent also has some rights when the nomination of the guardian for the child is made. Generally, a parent may nominate a guardian for the person and/ or estate of a minor in either of these cases-
- The other parent nominates or consents in writing to the nomination of the same guardian for the same child.
- At the time the petition for the appointment of the guardian is filed, either the other parent is dead or lacks legal capacity to consent to the nomination, or the consent of the other parent would not be required for the adoption of the child.
The appointment of the standby guardian cannot however be made over the objections of a non custodial parent unless it is found that the noncustodial parent’s custody will prove detrimental to the minor.
The custodial parent and standby guardian will share in the care, custody, and control of the child. Once a guardian is appointed for a child, such nomination remains effective even in the event of subsequent legal incapacity or death of the person making the nomination. However, this will not be the case if the writing making the nomination provides otherwise.