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Guardianship is a legal arrangement where a court gives a person the legal right to make decisions for another person who is unable to make decisions for themselves. In New York, there could be guardianship of a child or of an adult. In this post, we discuss how to get legal guardianship of a child.
When Child Guardianship May Be Necessary
As a general rule, the biological parents are the natural guardians of the child by default. However, in certain instances, guardianship of a child may be necessary if the parents:
- Die
- Abandon or neglect the child
- Are in military service and abroad
- Were deported but the child remains in the U.S.
- Are too sick to take care of the child and cannot make decisions for the child anymore
In New York, a child is a person 20 years old or younger, not married, and not in military service.
Who Can File the Petition for Child Guardianship
To be a guardian, one must file a petition for guardianship. The following persons can file the petition:
- An adult relative or family friend
- A child-protective agency
- If the child is 14 years or older, the child
- Public administrator
Where to File the Petition for Child Guardianship
Either the Surrogate’s Court or the Family Court will have jurisdiction over the petition, depending on the unique circumstances of the case.
The petition for child guardianship is filed with the
Surrogate’s Court
if the child:
- Has inherited or will be awarded assets
- Is 18 years or older and has intellectual or developmental disabilities.
The petition for child guardianship is filed with the
Family Court
if all the following conditions are met:
- The child has not inherited or been awarded assets;
- One or both of the child’s parents are unable to care for the child; and
- The child is 20 years or younger, not married, and not in military service.
Types of Guardianship in New York
New York recognizes four types of guardianship:
- Guardian of the Person. The guardian is responsible for the personal care, medical decisions, housing, food, and other daily needs of the incapacitated person.
- Guardian of the Property. The guardian manages the finances, assets, income, and expenses of the incapacitated person.
- Guardian of the Person and Property. The guardian is responsible both for the child’s personal care and assets.
- Guardian Ad Litem. A guardian ad litem is assigned by a Judge to act for a person during a court case when they cannot defend their rights or protect their own interests.
Filing for Guardianship in New York
The first step is to file a petition with the appropriate court (either Surrogate’s Court or Family Court) together with the supporting documents. The supporting documents usually include the:
- Child’s birth certificate
- Parent’s death certificate (if applicable)
- Renunciation or consent to guardianship that should be completed by the parents.
Additional documents may be required if filing with the Surrogate’s Court such as:
- Combined Oath and Designation
- Joinder and Statement of Preference of Infant 14 Years and Over
- Waiver of Process, Renunciation and Consent to Renunciation by each interested party (e.g. second parent, sibling, grandparent)
- Affidavit of the Proposed Guardian of the Person
- Affidavit of the Parent.
If this renunciation or consent is not provided, a citation may be issued to the interested parties, notifying them of the petition and requiring them to appear before the court.
The judge holds a hearing to decide whether to appoint a guardian. Petitioner presents evidence showing why they think the child needs a guardian.
At the end of the hearing or at a later date (in case a written decisions is issued), the judge states his decision on whether the child needs a guardian.
Filing for guardianship over a child can be complicated, especially when the child is set to receive assets. Hiring an experienced guardianship lawyer can minimize the risk of committing mistakes which can delay the proceedings. Should you need legal representation, we at the Law Offices of Albert Goodwin are here for you. We are located in Midtown Manhattan in New York City. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
