(Click below for new Designation of Standby Guardian form)
Designation of Standby Guardian (updated July 2018)
On June 27, 2018 Gov. Cuomo signed two important bills to help parents at risk of arrest, detention, deportation, or removal due to immigration status make plans in advance for the care, custody, and guardianship of their children “just in case.”
NY Standby Guardian Law
The NY Standby Guardian law now includes parents (or legal guardians) at risk of “administrative separation” due to immigration status, and will enable parents to name a Standby Guardian who will be able to act for 60 days after the “triggering” event (arrest, detention, deportation, removal) before petitioning the court.
A parent can name a Standby Guardian (and an alternate) by completing a Standby Guardian form before two witnesses.
“Administrative separation” refers to a federal immigration matter and means the parent or legal guardian’s arrest, detention, incarceration, deportation, or removal; or official communication by federal, state, or local “authorities” about immigration enforcement that gives reasonable notice that care and supervision of the child may be interrupted or cannot be provided.
After the Standby Guardian receives papers showing “administrative separation” and the consent of the parent (signed by 2 witnesses other than the Standby Guardian), the person named Standby Guardian can then file a petition in Surrogate’s Court (not Family Court) asking a judge to appoint them as Guardian for the children.
A parent (or legal guardian) can also petition the Surrogate’s Court (not Family Court) to appoint a Standby Guardian, who will have the authority to act only if necessary.
The law now authorizes the court to not have a hearing and appoint a guardian ad litem or attorney for the children to report on whether the appointment is in the child’s best interests.
Temporary Care & Custody: “Designation of Person in Parental Relation”
Gov. Cuomo also signed into law a bill that allows a person designated as temporary caretaker for children to act for 12 months (they used to only be able to act for 6 months). The parent can make the designation activate only if necessary if the parent is detained or deported. This temporary care and custody form is formally called a “Designation of Person in Parental Relation.” A parent can renew the temporary care and custody designation every 12 months by signing the form before a notary public. (The person designation by the parent also has to sign the form.)
These new laws will make it easier for parents to plan in advance for their children by naming a Standby Guardian and designating a temporary caregiver “just in case.”