Statute and Standards

Family Code Sec. 3040(a)(1) gives statutory custody preference to the child's parents or parent. Under Sec. 3041(a), before a non-parent can be granted custody over the objection of a parent, the court would be required to find that parental custody “would be detrimental to the child” and that custody to the non-parent is “required to serve the best interest of the child” (emphasis added). Moreover, under Sec. 3041(b), a finding that parental custody would be detrimental to the child would have to be established by clear and convincing evidence.

Appointment of Guardian

A court may appoint a guardian if it is in the child’s best interest as determined under family law custody statutes, particularly Family Code section 3020 and 3040 et. seq. (Sec. 1514(b).) Family Code section 3020, subdivision (a), provides “the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children.” (Fam. Code, Sec. 3020(a).)

Under Family Code section 3041, which governs contested guardianship appointment proceedings, parents are first in the order of preference for a grant of custody, but a showing of de facto parent status by a nonparent creates a rebuttable presumption that it would be detrimental to place the child in the custody of a parent and the best interest of the child requires nonparental custody. (Fam. Code, Secs. 3041(a), (c), (d).)

Termination of Guardianship

Probate Code section 1601 governs the termination of probate guardianships. (Prob. Code, Sec. 1601; further undesignated section references are to the Probate Code.) Section 1601 provides, “Upon petition of the guardian, a parent, the ward, or, in the case of an Indian child custody proceeding, an Indian custodian or the ward’s tribe, the court may make an order terminating the guardianship if the court determines that it is in the ward’s best interest to terminate the guardianship. Notice of the hearing on the petition shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.” (Sec. 1601.)

“Best Interest of the Child” Standard

The best interest of the child is the sole criterion governing guardianship termination proceedings. (In re Guardianship of L.V. (2006) 136 Cal. App. 4th 481, 490 stating ward’s best interest is only criterion for determining whether to terminate a probate guardianship; Sec. 1601.) The fitness of a parent to assume custody is not a controlling consideration. (Guardianship of L.V. at 488-491 stating termination of guardianship was not in the best interest of a child even though parents could provide basic food, clothing, and shelter.)

What constitutes the best interest of a child presents an inherently factual issue. (In re Guardianship of Olivia J. (2000) 84 Cal. App. 4th 1146, 1159-1161 stating whether parental custody is detrimental to minor or whether award of custody to nonparent is required to serve child’s best interests are factual questions.) As this court has recognized, this is “an inquiry that is particularly founded on application of the trial court’s experience with human conduct.” (Guardianship of L.V., supra, 136 Cal. App. 4th at 488.)

Where a court acts as a fact finder resolving matters of considerable significance to the parties, such as the best interest of a minor, a full evidentiary hearing is warranted before the decision can properly be made. (Harbour Vista, LLC v. HSBC Mortgage Services, Inc. (2011) 201 Cal. App. 4th 1496 at 1507-1508 discussing circumstances where an evidentiary hearing and oral argument is required, including quiet title actions and summary judgment motions.)

Evidentiary Hearing Requirement

Section 1601 requires an evidentiary hearing before a court may terminate a probate guardianship. For example, in Guardianship of Simpson (1998) 67 Cal. App. 4th 917, 920-921, the court held a trial during which evidence was presented and witness testimony was taken on whether a voluntary probate guardianship should be terminated and the children returned to their father. The court held the father bore the burden of proving by a preponderance of the evidence that his overall fitness was sufficient to overcome the inherent trauma of removing the children’s successful and long-term caregiver. (Id. at 933.) Likewise, in Guardianship of L.V., the court held an evidentiary hearing on a petition to terminate a probate guardianship before denying the petition as not in the best interest of the child based on the evidence presented during the hearing. (Guardianship of L.V., supra, 136 Cal. App. 4th at 485-487.) These cases demonstrate that an evidentiary hearing is necessary before a trial court can resolve the important factual issue of what is in a child’s best interest.