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How to get custody of a child from the mother


8 Steps to Final Orders

Litigating custody of a child in California consists of eight main steps. Some may be skipped or rearranged and others added, depending on your circumstances and county.

At any point, parents can agree on a plan and have a judge sign it. Then the custody process jumps to Step 8.

Private mediation, collaborative law and other alternative methods for deciding custody follow their own processes.

Custody X Change is software that creates customizable parenting plans and custody schedules.

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Step 1: Preparation

Do your research and consider your options. Will you request sole or joint physical custody? What about legal custody? What does your ideal parenting schedule look like? Then, meet with a lawyer to come up with a legal strategy. Attorney representation is strongly recommended, but if you're not able to hire someone, you should at least do a free or low-cost consultation to hear the thoughts of a professional.

Step 2: Filing

Before you can request custody, you must open a family law case with your county's superior court; this can be a divorce, a request for a domestic violence restraining order, a paternity case or a custody case. Then you file a request for a custody order, which can be done by either parent. Once the other parent has been served with a copy of your court papers, they can file a response.

Possible: Emergency custody hearing

If a child is at risk of being harmed or removed from the state within the next few days, a parent can request an expedited hearing to determine if emergency temporary orders are necessary (also called ex parte orders). If a judge issues emergency orders, they stay in effect until the next hearing, when they can be terminated, replaced by temporary orders or extended.

Step 3: Orientation

Many counties in California require parents to complete a short orientation at the start of their custody-related case. Often times, it can be done online, such as in Los Angeles, Santa Clara and Napa counties. If your county doesn't require orientation, the video introduction to child custody mediation from California Courts can help you prepare for your next step.

Step 4: Court-ordered mediation

Parents are required by law to attend mediation before having a judge decide their custody or visitation arrangement. They will meet for free with a court-employed mediator for up to several hours, and lawyers will not be present.

The goal of mediation is to develop a detailed parenting plan the parents both support, which can be signed by a judge to become a final order. If mandatory mediation does not result in total agreement, some counties' mediators give recommendations to the court. In other counties, mediators simply report that an agreement was not reached.

Remember that anytime parents are able to agree on a parenting plan ― through mediation, informal negotiation or otherwise ― a judge can sign it, and the custody process jumps to Step 8.

Step 5: Hearing

If mediation did not result in a parenting agreement, it will be followed by a hearing. This is generally the first time the parties meet with a judge, though some counties require an initial hearing before court-ordered mediation.

After reviewing the facts of your case, the judge will do one or more of the following:

  • Order a child custody evaluation if they want a mental health professional to weigh in
  • Appoint child's counsel if they believe the child needs a lawyer
  • Give temporary custody orders if the parties can't agree on a parenting arrangement for the duration of the custody proceedings
  • Order another hearing or a trial

Hearings are opportunities for you to briefly present your argument and evidence to the judge so he or she can determine next steps. The parents and their lawyers typically all speak.

You may have as few as one hearing or as many as 10 hearings throughout your case, depending on your family's circumstances.

Step 6: Conferences

Conferences are essentially meetings with the judge, and they generally happen in the judge's chambers. Many times, parents who have lawyers send the lawyers in their places.

Different counties use different types of conferences.

A pretrial conference or trial setting conference makes sure both parents are ready for trial, estimates how long the trial is likely to take, sets ground rules and more.

In a settlement conference, the parents again come together to try to find common ground and avoid a trial. This time, the judge guides the parents toward a solution. Some counties do not require or offer this step, while others use multiple settlement conferences.

Step 7: Trial

If parents are unable to settle, they will ultimately end up in trial.

A trial is like an extended, more formal version of a hearing. Both parents get to present evidence and question witnesses in front of the judge so he or she can issue a ruling.

A trial can last hours, days, weeks or, in extremely complicated cases, months. Often there's a significant waiting period between the last hearing and the trial because court calendars fill up and lawyers need time to gather evidence.

At the end of the trial, the judge will announce their decision. Once signed, it is known as a final custody order.

Step 8: Final custody orders

To bring the custody process to a close, a judge will sign a final custody order. It lays out, in the form of a parenting plan, the legal terms all parties must abide by until each child involved turns 18 or is emancipated. The details are decided either by a judge after a trial or by the parents themselves, with the judge signing off.

If a parent has reason to contest a court's decision, they can appeal to a higher court and begin the legal process again. They can also file a motion to cancel the court order.

As children grow older and their lifestyles change, orders often need to be modified several times. Parents can develop a new parenting plan together or one can request that the court modify the existing plan.

If the other parent doesn't follow a court order, you should keep detailed notes of the violations. For serious or repeat violations, you can contact police or file for contempt with the court.

Throughout your case

During the custody process, you may need to create a parenting plan, draft custody schedules, track your time with your child, keep a log about interactions with the other parent, and more.

The Custody X Change app enables you to do all of this in one place.

With a parenting plan template, custody calendars, a digital journal and beyond, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.

Throughout your case, take advantage of our technology to stay on top of all the moving parts.

Custody X Change is software that creates customizable parenting plans and custody schedules.

Make My California Plan Now

Custody X Change is software that creates customizable parenting plans and custody schedules.

Make My Plan

How to Transfer Child Custody Without a Lawyer

Learn more about transferring custody.

By Melissa Heinig, Attorney

How Do I Transfer Child Custody?

It's not easy to think about, but circumstances may arise when you need to ask someone to care for your children when life gets complicated. Whether you're thinking about giving custodial authority to a family member or custody to the other legal parent, you must follow the law. If you already have a custody order from the courts, the only ways you can transfer custody are to either:

  • put an agreement in writing with the other parent, or
  • ask the court to modify your custody order.

If you're married and separating or divorcing, and you have been the child's primary caregiver, you and the other parent can agree on an informal custody arrangement until your court hearing. If you disagree or are unmarried and do not have a custody order, you may need to request temporary custody orders while waiting for the court to finalize your case.

What Sort of Documentation Do You Need to Transfer Custody?

The first step in transferring custody is to review your current custody order. If you share custody with the child's other parent, you must have permission before you change the custody arrangement.

If the other parent disagrees, you'll need to file a formal request (motion) with the court to change the order. While state law varies, most states require a parent to demonstrate that there's been a change of circumstances that would require a modification to the custody order. You'll also need to convince the court that a transfer of custody would benefit the child's best interest.

Getting a formal agreement

Whether you're transferring custody between legal parents or you're delegating authority to a family member, to do it properly and protect yourself in the future, you'll need to draw up an agreement between you and the parent or guardian. You can do this without a lawyer, but you'll need to present this agreement to the local court for a judge's approval. If you try to skip the court altogether, you put yourself at risk. More often than you'd imagine, the parent giving up custody will have a change of heart after a while and then denies there ever was any agreement.

Ensure the agreement is clear and includes provisions for the child's legal and physical custody, visitation arrangements, and child support. The agreement needs to make the important points in writing and include both parents' and guardians' names and include the child's name and birthdate. Then be sure you all sign the agreement in front of a notary public before you submit it to the court.

Do You Need a Lawyer to Transfer Custody?

Parents who are transferring custody to another biological parent do not need to hire a lawyer to complete the process. If both parents agree to all the terms of the written agreement, the court will generally accept it. However, if either parent disagrees or attempts to transfer care of their child to someone else, the process may be more complex and require a lawyer. Regardless of the circumstances, both parents will benefit from hiring independent attorneys to review any agreements and protect each parent's rights.

Do I Have to Transfer Custody to Family?

Child custody is a serious matter that only parents and the courts can decide. Parents can't allocate custody to a third party without court involvement. However, parents can delegate legal authority to a family member or friend, with the intent that the person will have physical custody and care of the child. Unless the parent or guardian went through the proper legal channels to obtain legal guardianship, the parents could revoke authority at any time.

Parents who wish to transfer custody to someone other than the child's other legal parent must go through the court system. The court will evaluate the case and only transfer custody if it's in the child's best interests.

What About Child Support?

In all 50 states, the law requires parents to support their child financially, and every child custody order contains a provision for child support. If you're transferring custody between biological parents, your agreement must include child support guidelines, including which parent will pay and how much. Some states require you to complete and sign a form separate from the custody agreement, which outlines the specific terms for child support.

If you're a parent currently paying support and you've agreed to become the child's primary caregiver, the first step is for you to forward your agreements to the court that handled your divorce or original custody case. In many cases, you can include a letter asking a judge to adopt the new agreement as a court order and request an order from the judge canceling the deductions from your paycheck. A sympathetic judge will give you what you need to take to the payroll office and cancel the child support payments. An unsympathetic judge may tell you that you need to hire a lawyer for the job. But in truth, it is a straightforward procedure, and you should be able to do the necessary paperwork.

The parent accepting custody must continue to pay court-ordered support until the court adopts the new order. Otherwise, the parent can get stuck with paying back child support, even though the parents transferred custody to the paying parent.

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We arrange custody of a child with living parents

Children are the most unprotected category of people in society. Sometimes it is they who need protection more than adults. In life, there are situations in which fathers and mothers do not show the necessary care for their children. There are solutions to this problem in the legislation. One solution to the problem is guardianship.

Free consultation on family issues specialist Sergey Borisovich Volkov REQUEST A CALL

WHEN DO YOU NEED GUARDIANSHIP FOR MINORS?

Guardianship of a minor is issued in the event that the father and mother do not fully fulfill their obligations to the child. To obtain the status of a guardian for a child who has parents, the law establishes the following.

  • This can be both a physical and mental disorder, in which there is no full-fledged care for the child.
  • Field of activity related to permanent and unlimited business trips. nine0016
  • The territory of residence of the father and mother is in another city or country.
  • Lack of opportunity to provide your own child with things necessary for life, growth and development.
  • The desire of parents to give up their child on a voluntary basis.

The Family Code still contains reasons related to the return of the father and mother of the child. Parents have not reached the 16-year return, and the relationship is not registered according to the norms of the legislation of the Russian Federation. nine0003

WHO CAN BECOME A GUARDIAN, WHAT REQUIREMENTS DO THE LAW
  • Legal legislation puts the interests of the child at the head. That is why a prerequisite for the life of the baby and his social development is to improve the standard of living and his environment before the change of guardianship. A complete list of requirements is specified in article 146 of the Family Code
  • The guardian must have full legal capacity. This means that the guardian must have a legal form of legal action and it is he who is absolutely responsible for the execution of any action related to the field of jurisprudence. nine0016
  • It is unacceptable to have criminal or administrative punishment, as well as cases of deprivation of parental rights from a person who wants to become a guardian and take care of a child.

A person who is ready to take responsibility for a minor citizen will not be appointed as a guardian if he has a chronic drug or alcohol addiction (a mandatory medical examination of candidates for guardianship is carried out). And also people with the first group of disability are not allowed to guardianship. nine0003

HOW TO GET GUARDIANCY OVER A CHILD

The legal legislation of the Russian Federation provides for only two main possibilities for obtaining custody of a child:

  • - the presence of written consent from the biological parents
  • - availability of documents indicating the deprivation of legal parents of their parental rights

WHAT CHILDREN ARE ALLOWED TO GET CUSTODIANS
  • Before the age of 14 of the minor.
  • In case of deprivation of the father and mother of the rights to the child, then until the age of 18, and in exceptional situations up to 23 years.
  • When there is a temporary lack of opportunities for full-fledged child care.

Guardianship for a certain period of time is issued in the following cases:

  • The father and mother officially terminated their marriage.
  • A person who has not reached the age of majority attends an educational institution located far from the place of residence
  • An unfavorable economic situation in the family or one of the parents has a serious physical or mental deviation.

GUARDIANSHIP OF A SICK CHILD WITH A DISABILITY

The process for obtaining guardianship of a minor with a disability is very different from that of a child without a disability. All this is due to the fact that disabled children are more defenseless. According to the law, disability is considered to be physical and mental disabilities. nine0003

    • A person who wants to become a guardian of a child with a disability must go through the most difficult procedure.
    • Proper comprehensive medical examination.
    • Written parental consent is required. If this consent is not provided by the guardian, the registration process is very complicated.

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Relatives, especially grandmothers, have priority in matters of guardianship. And all because grandmothers, like no one else, can replace a mother for a child.
Although relatives have the first priority when applying for guardianship, the package of documents for guardianship remains unchanged. Of course, the desire of the persons in respect of whom guardianship is issued is taken into account in accordance with the law, but as practice shows, children with a great desire remain to live with close relatives. nine0003

RIGHTS AND OBLIGATIONS OF THE GUARDIAN

The Family Code is the document regulating the main processes related to guardianship and guardianship, and in disputable situations it is necessary to refer to the federal normative act (law).

A person who has taken custody of a minor is obliged:

  • The guardian is obliged to provide his ward with housing, clothing and food.
  • The guardian takes care of the health of his or her ward and takes measures for treatment in case of symptoms indicating illness. nine0016
  • The guardian is obliged to provide the minor with all conditions for comprehensive development, provide an opportunity for education.
  • The guardian must meet the needs of the child until the age of 16.
  • The guardian must have a common residence with the ward until he reaches the age of 16 years.
  • When changing the place of residence, the person who has issued guardianship is obliged to notify the guardianship authorities about this. nine0016
  • The guardian is obliged to own and use the property of the ward with the written permission of the authorized bodies.
  • The funds of a minor are spent only on his needs. The guardian submits an annual report for the money of his ward.

A person who has taken custody of a minor has the right:

  • A person who has taken custody of a minor has the right to use the things of a minor until the age of 14, and with the permission of the child up to 16 years of age. A person in respect of whom guardianship has been issued begins to participate in legal transactions on his own, only when he reaches the established age. nine0016
  • The person who has issued guardianship independently establishes the methods of the educational process of the ward, but the guardianship authorities have the right to express their opinion.
  • The guardian receives money for the child he has taken into custody.
  • If the person who has issued guardianship has a decreased financial condition, or health problems have begun, he has the right to cancel guardianship in the relevant authorities.

WHAT DOCUMENTS DO YOU NEED?

Due to the fact that when formalizing guardianship, guardianship authorities entrust the life and health of a minor child, this process is rather laborious and requires a large amount of materials, which reflect the maximum information about the guardian. Documents related to the materials required for registration of guardianship:

  • Identity document (passport).
  • A complete and consistent account of the life of the person who draws up guardianship (autobiography). The autobiography reflects information about education, places of residence and places of work. Providing false information may result in liability, up to criminal liability. nine0016
  • Certificates indicating the financial condition of the guardian. In the case when a person has more than one source of income, information on all is required.
  • Standard statement of the competent authorities to which the person holding guardianship expresses his desire.
  • Written consent is required under the condition that the parents have rights to the child.
  • Pension certificate. Required for grandparents if they decide to become guardians of their grandson. nine0016
  • A document (certificate) certifying the fact that the person formalizing guardianship has no criminal record.

PROCEDURE AND NUANCES OF THE PROCEDURE

The state guardianship authorities are responsible for documenting guardianship in our country. A citizen who wants to take a child to himself must collect a complete package of these documents and together with him apply to the guardianship authorities at the place of residence. It is there that all the necessary checks will be carried out and the person will be able to obtain a legal document on guardianship. nine0003

Having received all the necessary documents, the guardianship authorities are obliged to form an independent commission of guardianship department employees at the candidate's place of residence. The final goal of the commission is to draw up a special. act. The commission is obliged to leave within three days at the place of residence of a person who is ready to become a guardian. On the fact of the actions performed, an act is drawn up on checking the living conditions in which the child will be.

If the commission makes a positive decision on this act, then the guardianship department inspector must verify the authenticity of all previously submitted documents. After 10 working days, employees of the guardianship department are required to notify the person who submitted the application about their decisions in writing. nine0003

If the issue is successfully resolved, a guardianship order is issued. This legal document will be valid for two years.

A child who has reached the age of 10 years at the time of legal guardianship has the right to make his own final decision on the appointment of a guardian. Obligatory only in case of full consent of the child is it possible to complete the guardianship procedure.

Disputed relationship: how to get the right to a child | Article

In Magnitogorsk, a young man could hardly get guardianship of his younger sister after his mother's death - the right to a child was unexpectedly declared by a previously convicted father, who had never been interested in their life. The story is not over yet - as in many other similar cases, the family will face long legal battles. "Izvestia" figured out what awaits minors, for the guardianship of which several parties claim at once.

How children are divided in court

22-year-old Yaroslav Ionush, a member of the Ministry of Emergency Situations, has recently become a temporary guardian for his eight-year-old sister, whose mother died two years ago. However, this had to be achieved through the courts.

Yaroslav said that their mother died at the age of 38, when his sister was six years old. He took responsibility for the child, since even during the life of his mother he replaced the father of the girl - the man who was his stepfather left the family in 2014 and later did not take any part in her life. He also did not come to the funeral, he did not express a desire to pick up his daughter. However, Yaroslav was denied custody of his sister, since his father is alive and he must first be limited in his rights. nine0183

contentious relationship

Photo: depositphotos/Kostia777

The courts turned out to be a difficult test - the girl's previously convicted father filed a lawsuit to transfer the child to him for upbringing, and guardianship, citing some kind of psychological examination, stated that the girl wants to live with him . Yaroslav suggested that her father decided to take custody of her daughter for financial reasons.

When the man tried to establish contact with the girl, he failed - she refused to go out with him, was not happy with his gifts. New forensic examinations confirmed that the girl had no connection with her biological father. nine0003

As a result, he was limited in parental rights, and in September Yaroslav received temporary custody of the girl - so far only for six months. After this period, legal proceedings may begin again.

In Moscow, a court recently took place in another similar case - former cohabitants argued for the right to raise a child. This story began in the winter of 2021 - Adamkhan Shukurov took his 10-month-old daughter and kept her for more than a week. It was possible to rescue the girl with great difficulty, but this was followed by litigation. At the trial, Shukurov's side claimed that his former cohabitant Oksana Smetankina was a bad mother, but could not confirm this. As a result, the court took the side of Smetankina, establishing her right to a child. nine0183

contentious relationship

Photo: ITAR-TASS/Stanislav Krasilnikov

Both cases ended successfully, but the child experiences great stress in such situations. For example, a few years ago, near St. Petersburg, a seven-year-old girl was taken away from her grandmother and handed over to her father, who was convicted three times and was serving a sentence at that time. It was possible to cancel the decision of the administration only through the court with the participation of the Commissioner for Human Rights in the Leningrad Region. And in Tyumen, at the beginning of the year, a whole epic unfolded, when the child was taken away from the relatives of the deceased spouse by force in order to give it to the father by a court decision. nine0003

What are the interests of the child

Lawyer Viktoria Dergunova notes that all disputes about children, regardless of who they are between, should always be resolved in the interests of the child. At the same time, the Family Code does not disclose this concept, so it must be interpreted in accordance with the Convention on the Rights of the Child and the practice of the European Court of Human Rights.

- In the jurisprudence of the ECtHR, the following two are primarily considered “in the best interests of the child”: maintaining ties with the family, unless it is established that these ties are undesirable, and the possibility of developing in a healthy environment , Dergunova told Izvestia. - The court should not be engaged in predicting how a child's life will turn out in a family about which he has no memory, with whose members he has no emotional connection.

She notes that the interests of the child should be understood as a frame of reference within which the situation in which the child is located should be considered.

- The ECtHR has repeatedly emphasized the inflexibility of Russian legislation in terms of regulating the issues of a child's communication with significant people who are not included in the circle of his close relatives within the meaning of Art. 55 Family Code , said Dergunova. — Inflexibility is expressed in the fact that Russian legislation contains an exhaustive list of persons entitled to contact with a child. The legislation does not provide for any exceptions, nor does it take into account the variety of family circumstances that may be taken into account in order to ensure the best interests of the child.

contentious relationship

Photo: depositphotos/dimaberkut

As a result, she notes, In practice, situations often arise when a person who is not a relative of the child, but who is deeply attached to him and cared for him, under no circumstances has the right to communicate with him .

Lawyer Anton Zharov notes that the current legislation on guardianship and guardianship contains an indication of the priority of appointment as guardians or trustees only for grandparents, adult brothers and sisters of a minor ward, and great aunts and grandfathers, cousins ​​and sisters are not covered by this rule. articles. nine0183

He notes that in Russia the family is elevated to the rank of something sacred - if a person is biologically related to a child, then he acquires significant rights, which leaves an imprint on judicial practice.

- As a result, the priority of the interests of the child over the priority of parents suffers , - he explained to Izvestia. - Although, in principle, we have stipulated that the court should decide on the place of residence of the child in a disputable situation based on his interests. And a lot depends on the judge. The Supreme Court has repeatedly said that it is necessary to avoid a formal approach in such cases, that it is necessary to examine not only the materials of the case, but also communicate with people, and require guardianship to carefully examine relationships in the family. Another thing is that with the existing workload and qualifications, do judges always do this? Probably not always. nine0183

One more question - guardianship behavior, Zharov notes. In his opinion, the principle of its work can be described as "no matter what happens."

“Guardianship often takes the least resistance approach so that, God forbid, there is no scandal,” he says. - The interests of the child in this case often play a secondary role, because each state body seeks first to save itself, and then, if possible, to save the children. And after all, no one will condemn the guardianship authority for giving the child to the father - it is much easier to pretend that we do not see any other circumstances, that here is the father, he is the father. nine0003

contentious relationship

Photo: Izvestiya/Alexander Kazakov

What guides the court when choosing a guardian

O.E. Kutafina, co-founder of the ANO for the legal support of women and children "Mom in the right" Elena Grin notes: according to Art. 63 of the Family Code, parents have the priority right to raise their children over all other persons and have the right to demand the return of the child from any person. nine0183

“But the court has the right not to transfer the child if it considers that such a transfer does not meet its interests ,” she told Izvestia. - For each specific case, everything is investigated - how this parent took care of the child during the life of the other parent, the conditions created for the child, whether he remembers him, from the age of 10, the opinion of the minor himself is also taken into account.

Lawyer, specialist in family law Larisa Vetter also notes that the only legal representatives of the child are the parents. nine0183

- That is, , according to the meaning and norm of the law, it is first necessary to restrict the rights or deprive the rights of a parent if there are good reasons , - she told Izvestia. — And only then can the person who takes care of the child be considered as a potential guardian. Restriction and deprivation of rights are the most difficult cases. It is necessary to prove that the parent harms the child by his actions.

Grin notes that in such cases a forensic psychological examination of parent-child relations is carried out, which is otherwise called “psychological and pedagogical examination”. In the course of it, the personality of the child, father, mother and other relatives who plan to live or live with him, as well as the psychological characteristics of their relationship, are examined. nine0183

“Courts are very sensitive to the preferences of a child over 10 years old ,” Grin said. — In young children, the preference question is rarely asked because the opinion of such a child is largely dependent on the opinion of the adults around him, and also because such a question can exacerbate the child's internal conflict and affect the results of the entire study.

contentious relationship

Photo: RIA Novosti / Vladimir Song

If a question about preferences is asked and the child responds with a clear desire to live with one of the parents, then the expert must determine whether this desire is a free desire of the child or a repetition of other people's words and the result of psychological influence, Grin explains. According to her, at a younger age, when answering this question, the child more often chooses the parent in front of whom he experiences more fear. The hostile moods of the child towards one of the parents, the expert must also clearly understand and determine their nature - it happens that negative feelings are fueled by another parent and do not basically contain serious problems in the relationship between the parent and the child. nine0003

How parents deceive the court

“Guardianship is often regarded by negligent relatives as a tool for obtaining benefits and other types of state support ,” Alexey Gavrishev, managing partner at AVG Legal, told Izvestia. “However, thanks to the work of guardianship authorities, as well as the provisions of the law, in most cases such intentions are easily detected and mercantilely motivated relatives do not receive guardianship.

Victoria Dergunova also notes that it will be difficult for an unscrupulous parent to deceive guardianship and the court - his sincere desire to take the child here alone will not be enough.

“It will be necessary to provide evidence that confirms the intention and desire of unscrupulous parents to take the child into the family: communication with him, transferring funds for his maintenance, interest in his fate,” she says.

Larisa Vetter notes that, nevertheless, a parent who acts for any mercenary reasons can obtain custody of a child. nine0183

— There are no exact mechanisms and tools, everything rests on the inner conviction of the court, the impression that the situation makes, she emphasizes. - That is why it is important to have evidence that can refute the words.

Elena Grin notes that in this situation, an expert in the field of psychology must establish the motives of the parent, the characteristics of his personal relationship with the child, the characteristics of all family members.

contentious relationship nine0003

Photo: RIA Novosti / Vladimir Pesnya

How to get custody of a child

A potential guardian must collect a whole package of documents, including references from the place of work and from the place of residence, proof of income, a police certificate of no criminal record, a medical report on the state of health, an act of examination of living conditions.

Learn more