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It's Never Too Late to Think About Your Child's Future

Custody Planning and the Joint Guardianship Law

May 2000

A young mother with two children is HIV-symptomatic and sometimes cannot take her children to school because she is too sick to get out of bed. She has a good friend who has established a relationship with the children. If anything were to happen, she would want her friend to care for the children, as their father is not involved in their lives. She is confused as to what to do. Should she get a notarized letter? Her oldest child has begun to "act out" in school and she wonders if he needs counseling.

This scenario is common among families who seek assistance from Public Counsel's Children's Rights Project.

As a member of the HIV/AIDS Legal Services Alliance (HALSA), the Children's Rights Project (CRP) provides legal assistance in the area of children's law. The Peace of Mind Program within CRP helps parents impacted by HIV/AIDS plan for their child's legal future. Often, this takes the form of a joint guardianship.

Custody planning can be very difficult emotionally, especially when a parent is confused about his or her legal options. Parents may not realize that they need to legally secure their child's future if they should become too ill to care for their child. This is understandable. Parents also tell us that they are afraid to make plans for their child's future because this makes them feel as if they have given up all hope of recovery and resigned themselves to die.

The Child's Rights Project's Peace of Mind Program uses trained social workers and attorneys to help clients choose the best legal option in a way that respects the client's situation.


Planning for their child's future provides several advantages.

Planning provides a smooth transition to a new care-giver and a new home. It permits the children and parent choose where the child will live, and prevents the child from unnecessarily entering the foster care system. It provides the parent with peace of mind, relieves pressure and reduces the anxiety that children already feel.

Although the process is difficult to talk about at times, parents and children often feel better just knowing what their options are. At the beginning of a family meeting, a child commented that he has worried about what was going to happen to him. At the close of the meeting, he revealed that he felt better knowing that he was going to be cared for if his mother was unable to do so.

In addition, Public Counsel social workers can connect families with counseling referrals, housing referrals, and government benefits assistance.

A Plan to Ensure Care

The Joint Guardianship Law permits parents who suffer with a debilitating illness to designate someone to care for their children when the illness prevents the parent from providing for the daily needs of the child.

This statute, which is not an HIV/AIDS-specific law, allows the parent to select another person to help the parent care for their minor children. It is extremely important to remember that by obtaining a joint guardianship, you do not lose your parental rights. You share them equally with the joint guardian. Further, parents can also retain custody of their children after a joint guardianship has been granted.

In order to seek a joint guardianship you must be the custodial parent. A custodial parent is one who has been awarded sole physical and legal custody in another court proceeding or if the child lives with you, you also qualify as the custodial parent. Your health must also be affected by the illness.

When the time arrives that the parent is unable to care for her children, the joint guardian chosen by the parent and child can assume those responsibilities. If the parent is able to partially participate in parenting activities, the joint guardian can perform parenting activities. The legal relationship is important because it means that the joint guardian can obtain medical treatment, provide for immediate safety and educational needs and obtain public benefits for your child. Upon the death of the custodial parent, the joint guardian becomes the sole legal guardian of the child without any further court proceedings.

Not a Difficult Process

The process of seeking a joint guardianship is neither intimidating nor difficult.

Once you have made the decision to proceed with a joint guardianship, contact the HALSA intake line, (323) 993-1640. After gathering basic information, HALSA will forward your case to the Children's Rights Project. A CRP staff social worker will call you to begin the legal procedures.

Just like HALSA, Public Counsel needs a copy of your diagnosis form for our file. You will be assigned an attorney who will complete the legal forms and file them on your on behalf at Probate Court.

Once the legal forms are filed, the attorney is assigned a date for the hearing. This hearing is usually scheduled two months after the legal forms have been filed. In the meantime, an investigator is assigned to your case and will make at least one visit to your home. At no time do you ever have to reveal to the investigator the nature of your illness, except that it is terminal.

On the date of the hearing, you, along with your attorney, the proposed joint guardian, and the child/children will appear before the court. After reading the recommendation of the court investigator, the judge may ask you a few questions but these questions are never personal and the nature of your illness should not be discussed.

The hearing usually lasts less than 10 minutes. At the close of the hearing the judge signs the order granting the joint guardianship.

We realize that making the decision to seek and obtain a joint guardianship requires strength and support from friends, family and caring attorneys. While Public Counsel cannot make the decision for you, we can support your decision and provide services to make this process a little easier for you.

After the court hearing, official letters will be issued to you establishing your legal status proceedings. If this is the case, CRP staff can go to the hospital room to meet with the parent(s), the children and other family members.

Seek Support

It takes a lot of courage to even begin thinking about planning for your child's future. We recognize that this is sensitive, emotional issue and that clients need a lot of support and guidance. Public Counsel is here to walk you through every step.

If you have any questions or wish to begin joint guardianship proceedings, contact the HALSA intake line at (323) 993-1640.

Lydia Cincore Templeton is staff attorney for the Children's Rights Project and Dominique Quevedo is a social worker with the organization. Virginia "Jenny" Weisz, directing attorney for the Children's Rights Project, assisted in reviewing the article.

This article has been reprinted at The Body with the permission of AIDS Project Los Angeles (APLA).

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This article was provided by AIDS Project Los Angeles. It is a part of the publication Positive Living.
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