BILL NUMBER: AB 458 CHAPTERED
BILL TEXT
CHAPTER 102
FILED WITH SECRETARY OF STATE JULY 25, 2011
APPROVED BY GOVERNOR JULY 25, 2011
PASSED THE SENATE JULY 1, 2011
PASSED THE ASSEMBLY APRIL 14, 2011
AMENDED IN ASSEMBLY MARCH 29, 2011
INTRODUCED BY Assembly Member Atkins
FEBRUARY 15, 2011
An act to amend Section 1514 of, and to add Sections 2204 and 2205
to, the Probate Code, relating to guardianship.
LEGISLATIVE COUNSEL'S DIGEST
AB 458, Atkins. Guardianship.
Existing law, the Guardianship-Conservatorship Law, authorizes a
court, upon hearing of a petition, to appoint a guardian of a person
or estate of the proposed ward in accordance with specified
provisions of law governing the custody of a minor child.
This bill would prohibit a court from appointing a minor's parent
as a guardian of the person of the minor, except as specified. The
bill would establish requirements for transferring a proceeding to
another court in circumstances in which a proceeding that concerns
custody or visitation of a minor child is pending in one or more
counties at the time the petition for guardianship is filed, and
would specify circumstances under which the court in a guardianship
proceeding would maintain exclusive jurisdiction to determine issues
of custody or visitation. The bill would also require the court in
which a guardianship proceeding is filed to communicate with each
court where a custody or visitation proceeding is pending prior to
making a determination on maintaining or transferring the
guardianship proceeding, and would require the Judicial Council, on
or before January 1, 2013, to adopt rules of court to implement this
provision.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1514 of the Probate Code is amended to read:
1514. (a) Upon hearing of the petition, if it appears necessary
or convenient, the court may appoint a guardian of the person or
estate of the proposed ward or both.
(b) (1) In appointing a guardian of the person, the court is
governed by Chapter 1 (commencing with Section 3020) and Chapter 2
(commencing with Section 3040) of Part 2 of Division 8 of the Family
Code, relating to custody of a minor.
(2) Except as provided in Section 2105, a minor's parent may not
be appointed as a guardian of the person of the minor.
(c) The court shall appoint a guardian nominated under Section
1500 insofar as the nomination relates to the guardianship of the
estate unless the court determines that the nominee is unsuitable.
(d) The court shall appoint the person nominated under Section
1501 as guardian of the property covered by the nomination unless the
court determines that the nominee is unsuitable. If the person so
appointed is appointed only as guardian of the property covered by
the nomination, the letters of guardianship shall so indicate.
(e) Subject to subdivisions (c) and (d), in appointing a guardian
of the estate:
(1) The court is to be guided by what appears to be in the best
interest of the proposed ward, taking into account the proposed
guardian's ability to manage and to preserve the estate as well as
the proposed guardian's concern for and interest in the welfare of
the proposed ward.
(2) If the proposed ward is of sufficient age to form an
intelligent preference as to the person to be appointed as guardian,
the court shall give consideration to that preference in determining
the person to be so appointed.
SEC. 2. Section 2204 is added to the Probate Code, to read:
2204. (a) If a proceeding for the guardianship of the person of
the minor is filed in one county and a custody or visitation
proceeding has already been filed in one or more other counties, the
following shall apply:
(1) If the guardianship proceeding is filed in a county where the
proposed ward and the proposed guardian have resided for six or more
consecutive months immediately prior to the commencement of the
proceeding, or, in the case of a minor less than six months of age,
since the minor's birth, the court in that county is the proper court
to hear and determine the guardianship proceeding, unless that court
determines that the best interests of the minor require that the
proceeding be transferred to one of the other courts. A period of
temporary absence no longer than 30 days from the county of the minor
or the proposed guardian shall not be considered an interruption of
the six-month period.
(2) If the guardianship proceeding is filed in a county where the
proposed ward and the proposed guardian have resided for less than
six consecutive months immediately prior to the commencement of the
proceeding, or, in the case of a minor less than six months of age, a
period less than the minor's life, the court shall transfer the case
to one of the other courts, unless the court determines that the
best interests of the minor require that the guardianship proceeding
be maintained in the court where it was filed.
(3) If a petitioner or respondent in a custody or visitation
proceeding who is an authorized petitioner under Section 2212
petitions the court where the guardianship proceeding is filed for
transfer of the guardianship proceeding to the court where the
custody or visitation proceeding is on file at any time before the
appointment of a guardian, including a temporary guardian, the
provisions of this subdivision shall apply to the court's
determination of the petition for transfer. Except as provided in
this paragraph, the petition for transfer shall be determined as
provided in Sections 2212 to 2217, inclusive.
(b) The following shall apply concerning communications between
the courts:
(1) The court where the guardianship proceeding is commenced shall
communicate concerning the proceedings with each court where a
custody or visitation proceeding is on file prior to making a
determination authorized in subdivision (a), including a
determination of a petition to transfer.
(2) If a petitioner or respondent, who is authorized to petition
to transfer under Section 2212, petitions the court where the
guardianship proceeding is filed for transfer of the guardianship
after the appointment of a guardian, including a temporary guardian,
the court in the guardianship proceeding may communicate with each
court where a custody or visitation proceeding is on file before
determining the petition for transfer.
(3) If the court in the guardianship proceeding appoints a
guardian of the person of the minor, including a temporary guardian,
the court shall transmit a copy of the order appointing a guardian to
each court where a custody or visitation proceeding is on file, and
each of those courts shall file the order in the case file for its
custody or visitation proceeding.
(4) The provisions of subdivisions (b) to (e), inclusive, of
Section 3140 of the Family Code shall apply to communications between
courts under this subdivision.
(5) The Judicial Council shall, on or before January 1, 2013,
adopt rules of court to implement the provisions of this subdivision.
(c) For purposes of this section, "custody or visitation
proceeding" means a proceeding described in Section 3021 of the
Family Code that relates to the rights to custody or visitation of
the minor under Part 2 (commencing with Section 3020) of Division 8
of the Family Code.
SEC. 3. Section 2205 is added to the Probate Code, to read:
2205. (a) Except as provided in Section 304 of the Welfare and
Institutions Code, and subject to the provisions specified in
subdivision (b), upon the filing of an order appointing a guardian of
the person of a minor in a guardianship proceeding, including an
order appointing a temporary guardian of the person of the minor, the
court in the guardianship proceeding shall have exclusive
jurisdiction to determine all issues of custody or visitation of the
minor until the guardianship proceeding is terminated.
(b) This section is subject to the provisions of Sections 1510 of
this code, and 8714, 8714.5, and 8802 of the Family Code, relating to
consolidation of guardianship and adoption proceedings and the court
where the consolidated case is to be heard and decided.