| Taking Care of Myself and
My Children: Custody Planning and Future Care
By Julia Andino
Clinical Coordinator, Lesbian AIDS Project, Women & Family Services
Department
The information presented in this Web site is informational only
and is not legal advice. It is recommended that you consult with
a lawyer before making any decision pertaining to the custody planning
and future care of your children.
During the last year, as a community we experienced drastic changes
and feelings of impermanence in our lives as a consequence of the
September 11th tragedy. Within these social and emotional changes,
if you are a parent living with AIDS, it might make you wonder about
your children's future if something unexpected happens to you, such
as getting sick, incapacitated, a prolonged stay in the hospital,
or death. You are not alone in this process and we can help you
sort out the best option for you and your family.
The most important thing is for you to a have a well-thought out
plan for yourself and your family: a plan that reflects your thoughts
as well as action steps. These steps entail:
- exploring your options
- discussing your plans with your children, if they are old enough
- discussing your plans with your designated caretaker and/or
guardian
- discussing with a lawyer and social worker your options, reservations
and decisions.
Remember that it is not enough to just talk; once you make
a decision you need to put it all in writing to make it legally
binding.
Depending on your financial, emotional and health situation, you
might want to consider your options:
The most common questions asked regarding
Custody Planning and Future Care process are: What
is Judicial Guardianship?
A Guardian is a person appointed by the Family Court who, when you
are no longer able to care for your child, becomes legally responsible
for your child until your child becomes a legal adult. To become
a Guardian, the Guardian must petition the Family Court and ask
that he or she be legally appointed.
What is Stand-by Guardianship?
Stand-by Guardianship is a legal way to select someone to care for
your child in the future if you are unable to do so. It can be put
into place now, while you are still well and healthy and you will
NOT give up any of your parental rights.
How do I select
a Stand-by Guardian?
A Stand-by Guardian can be either appointed by the Family Court
in much the same way a Guardian is appointed, or a Stand-by Guardian
can be designated by the custodial parent in a
Written Designation of Standby Guardianship, which does not need
judicial approval, and can be completed in shorter time.
When does the Stand-by Guardianship take effect?
A Stand-by Guardian is a person selected by you to act as guardian
of your child. This person remains on "stand-by" until one of the
following situations occurs:
- You, as the parent, agree in writing that the stand-by guardian
can exercise their guardianship duties over your child
- Your physician determines that you are incapacitated and unable
to care for your child or
- Death
What if I change my mind about whom I select as the Stand-By
Guardian?
If you went to court to have your Stand-By Guardian appointed
then you must go back to court to revoke or change the Stand-By
Guardian. If it is a written designation then you many revoke stand-by
guardianship by destroying the existing documents and informing
the parties involved. If you have selected a new Stand-By Guardian,
make sure to do new documentation under the advice and consultation
of a lawyer and social worker, if needed.
What is the difference between naming a guardian in a will
and naming a stand-by guardian?
A will addresses issues after death. Naming a guardian
in a will means that the proposed guardian has no legal authority
until after your death. With a stand-by guardianship, you are protecting
your child both during your life and after your death; with a will
you are only protecting your child after death.
Must I obtain consent from the other parent who is not
in the household?
Efforts must be made to locate the non-custodial parent and notify
him or her of your plans. The other parent may agree to the stand-by
guardianship, or come into court and explain why it would not be
in the best interest of the child.
Can the non-custodial parent get
custody of my children?
If the objecting parent wants to take over the custody of the children,
and there is reason to believe that he or she is not fit to do so,
the issue of fitness may have to be decided by the court.
What is the difference between custody and guardianship?
There is no significant difference between guardianship and custody,
but sometimes one may be preferable. For example, a person who has
been convicted of a felony usually cannot become a guardian but
may be granted custody.
What is Temporary Care and Custody?
It's an informal permission to make medical and educational decisions
for a child when the parent is unable to do so. This agreement is
not a legally binding document and is not a substitute for naming
a guardian.
Are schools and doctors obliged to honor a Temporary Care
and Custody Agreement?
Schools and doctors cannot be forced to honor a Temporary Care and
Custody agreement, but they generally do.
What about EPP or Early Permanency
Planning?
EPP is part of the Administration for Children's Services, New York
City's Foster Care Program.
Parents who want their children's future caretakers to become foster
parents can ask ACS to certify the caretakers so that when the times
comes he/she is already a certified foster parent.
The primary advantage of EPP is financial, and parents can also
access these services when there are no friends or family available
to care for the children. In considering this option,
it is best to consult a lawyer before going to ACS.
Do I give up my rights with adoption?
Yes. With this option, as a parent you give up all rights with respect
to the child and can no longer make any decisions for that child.
The child gains the right to inherit and/or collect survivor's benefits
from the adoptive parent, and loses these rights with respect to
the biological parents.
Can I use a Last Will and Testament
to name the guardian of my children?
Yes. Just keep in mind that the Last Will and Testament addresses
the issue after death. That is, naming a guardian in a Last Will
and Testament has no legal authority until after your death.
The Women and Family Services Department provides supportive services
and counseling to assist families living with HIV/AIDS in navigating
the different social and legal systems. Remember that this process
may be simpler with the assistance of a team composed of lawyers
and social workers. For more information and additional
resources in the Metropolitan Area please contact:
GMHC Legal Department 212.237.1040
GMHC Women and Family Services Department 212.237.1366
Information for this article was obtained from the following sources:
Bowman, Cathy. "Looking After the Kids. How Parents with HIV
Can plan for the Future Care and Custody of their Children";
HIV/AIDS Law Consortium of Western Massachusetts; Stein, Gary. "NYS
Stand-by Guardianship Law: Recommendations for Amendments, Implementation
and Education"; Newsletter of the National Abandoned Infants
Assistance Resources Center.
© 2003 Gay Men's Health Crisis |
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