Rules, Laws And The Process of Guardianship

WHAT IS GUARDIANSHIP? 

A guardian is a person or an agency that the court gives authority to be responsible for a child’s care. The Family Court may grant guardianship of a child 18 years of age or younger or an 18-21-year-old with the young person’s consent. Guardianship is similar to custody and adoption: a person’s petitions to care for and be legally responsible for a child. 

An adult relative, family friend, or a child protective agency may petition the court to be appointed the child’s guardian. Guardianship is the most extensive power, short of adoption that a court can give a non-parent. It is not a permanent relationship; it ends automatically when the child reaches 18 years of age (21 if the child consents) or when the child marries or dies. The child’s guardian can, among other things, obtain or consent to medical, educational, and mental health services; consent to marriage; consent to enlistment in the armed services; and consent to the inspection and release of confidential medical records. 

WHAT IS STANDBY GUARDIANSHIP? 

Standby guardianship is a way for a terminally or seriously ill parent to plan for a child’s future. The parent selects who he/she wants to care for the child if the parent dies. The parent makes this decision legally valid by signing a sworn statement of his/her wishes or filing a petition in court. If the parent does die before the child reaches 18, the standby guardian must petition the court for guardianship. The guardian must serve the other parent, such as a legal father. If the surviving parent wants custody of the child, a fact-finding hearing is conducted and the court makes a decision based on what is best for the child. 

IS GUARDIANSHIP DIFFERENT IN SURROGATE’S COURT? 

Guardianship of a child under age 18, or 18-21 with the young person’s consent, may be sought in Surrogate’s Court or Family Court, though these petitions are most often filed in Family Court. Additionally, the Surrogate’s Court may grant guardianship of an adult who is mentally impaired and unable to care for him/herself. 

WHAT HAPPENS AT THE FACT FINDING HEARING? 

In a guardianship hearing, the court takes testimony about the person seeking guardianship to determine whether it would be in the child’s best interests to allow that person to take responsibility for the child’s care. The court may consider the child’s wishes. Before the guardian’s appointment becomes permanent, the guardian will be fingerprinted and undergo a background check. A person with prior child abuse or child neglect case cannot be approved as a guardian. 

WHAT SHOULD THE PERSON SEEKING GUARDIANSHIP BRING TO FILE A PETITION?
To file a guardianship petition, the petitioner should bring to court the child’s birth certificate, the original death certificate (if the parent is dead), and proof of identification (picture ID), proof of residence. If the child is over 14 years old and unable to appear in court, the child should sign and notarize a Form 6-3, “Preference of a Minor over 14 Years of Age.” If the child’s parents are unable or do not wish to appear in court, the parents should sign and notarize a Form 6-4 “Waiver of Process, Renunciation or Consent to Guardianship.” The petitioner should bring these forms to the court. 

WHAT IS KINSHIP GUARDIANSHIP? 

Kinship Guardianship, or subsidized kinship guardianship, allows relatives who take guardianship of children who have been in foster care to receive financial assistance. The relative must be related to the child either by blood, marriage, or adoption; must be caring for the child as a foster parent, and the child must have been in the relative’s home for at least six months. While an order of guardianship is a determination made by the court, the Administration for Children’s Services decides whether to provide financial assistance to the guardian. For information about the application process for Kinship Guardianship, speak with a foster care agency or with the Family Court’s Clerk. 

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