lawyer to obtain guardianship through probate court,16 the individual
“must file papers with the court and go through a number of steps
leading up to a court hearing. . . . [a]nd most people make
mistakes.”17 In Texas, the Texas Guardianship Association advises
that an individual seeking guardianship over a child will need the
assistance of a family law attorney.18
A caretaker who is neither a parent nor an established legal
guardian, but who has the financial means and ability to navigate the
probate system can obtain legal guardianship over the child.
Thereafter, if dependency proceedings are initiated, that caretaker
will be afforded with all the same rights as a legal parent in similar
proceedings.19 Conversely, a similarly situated non-parent caretaker
who is unable to obtain legal guardianship will have no rights during
the preliminary hearings of the child welfare case. Using California’s
child welfare law as an example, this Article will illustrate the
disparity between similarly situated non-parent caretakers. Currently,
only psychological parents who qualify as de facto parents—
individuals who fulfilled the parental role on a day-to-day basis—
under California law20 are awarded limited rights in dependency
proceedings. Moreover, these rights may only be granted during the
dispositional and later hearings, which occur well after the crucial
initial and adjudicatory hearings.
Non-parent caretakers who have become the psychological
parent to the child may share the same degree of kinship to the child,
may have assumed the same parental roles for the same period of
time, and dependency proceedings may have been initiated for
16 A probate court is a specialized court that deals in administration of estates and
other related matters.
17 See Becoming a Guardian, CAL. COURTS: JUD. BRANCH CAL.,
http://www.courts.ca.gov/1212.htm (last visited Aug. 20, 2012).
18 See TEX. GUARDIANSHIP ASS’N, http://www.texasguardianship.org (last visited
Feb. 15, 2013).
19 See supra note 6.
20 See CAL. RULES OF COURT R. 5.502(10) (defining de facto parent as “a person
who has been found by the court to have assumed, on a day-to-day basis, the role
of parent, fulfilling the child’s physical and psychological needs for care and
affection, and who has assumed that role for a substantial period”); see also infra
Part V (for an explanation of the de facto parent doctrine).