| TAKING MORE STEPS TO PROVIDE
FOR THE FUTURE CARE OF YOUR CHILDREN
Once you have written a will, there are other legal steps you can take to ensure that your
children are placed where you want them.
You can:
1. Appoint a standby guardian in writing and/or by going to court;
2. File a petition for regular guardianship in court;
3. File a custody petition in court;
4. Arrange for your children to be adopted;
5. Plan to place your children in a foster home with a relative, friend, or new family after
you are no longer able to care for them through the Administration for Children's Services's
Early Permanency Planning Project (EPP); or
6. Place your children immediately in foster care with a relative
as a "kinship foster parent," a friend or with someone you don't
know. Each of these options is discussed in the pages that follow.
You may also want to have someone take care of your children temporarily
while you are in the hospital or too sick to care for them. If you
do, you should think about making a temporary care and custody document.
See below for instructions.
APPOINTING A STANDBY GUARDIAN
If you are ill and wish to make permanent plans for the future care of your
children without losing custody of them, you can appoint a standby guardian. A
standby guardian will become the guardian of your children only if: 1) you become
too sick to care for them; 2) you die; or 3) you decide you want the person to
become the guardian before either of these events happen. A parent or guardian
can appoint a standby guardian for their children.
There are two ways to appoint a standby guardian. One is by going to court to ask
the court to appoint a standby guardian; the other is by naming (designating) the
standby guardian in writing.
Court-appointed standby guardian
If you want to make sure that the court approves who you choose as the guardian of
your children, you can go to court now to ask the court to appoint a standby guardian.
You will not lose the right to take care of your children now. You are asking the court
to approve your choice of guardian, which will go into effect later if you become
mentally "incapacitated," (unable to make decisions about the care of your children)
physically "debilitated" (physically unable to care for your children), you die, or
you agree in writing for it to go into effect. If you've never been to court, there's
nothing to be afraid of. Judges and court staff are there to help you. Unless your
children's other parent brings a lawyer to challenge you, you may not need a lawyer.
If you do need a lawyer, the court may assign a lawyer for you or you can call one of
the legal organizations listed below.
The court papers that you fill out will name the proposed standby guardian and
state when you want the guardianship to go into effect. Before approving the standby
guardian, the court will determine if the guardian you are proposing can take care of
your children. The procedure is the same as in a regular guardianship case (see the
section called "Filing a Guardianship Petition," which begins on page 8). For example,
the court will check the proposed guardian's name through the State Central Registry for
Abuse and Maltreatment, and may require the written consent of certain people.
If the court appoints the standby guardian, the standby guardian automatically becomes
the legal guardian of your children if you agree in writing, become incapacitated, or die.
The standby guardian must file in court proof of your consent, incapacity, or death within
90 days of receiving proof of these events.
You can go to either Family Court or Surrogate's Court to have a standby guardian
appointed. Most likely it will be Family Court. You do not have to go to court if you
are too ill. The papers can be filed for you.
Written designation of standby guardian
You may also appoint a standby guardian without going to court by signing a form called a
"designation" that names the person that you want to be the standby guardian of your
children. The designation must be signed by you and two witnesses who are over 18 and
not the standby guardian or alternate standby guardian.
If you designate a standby guardian, the law says that the standby guardian can act as
the guardian if you die or become either "mentally incapacitated" (unable to understand
the nature and consequences of decisions about the care of your child) or physically
"debilitated" (unable to care for their children), and you agree that the standby guardian
should begin to act.
If you become incapacitated, debilitated, or die, your standby guardian must go to
court within 60 days to file a regular guardianship petition. The standby guardian must
bring a death certificate or a statement from a doctor that certifies your condition.
If you are debilitated, you must provide a statement that says you want the guardian to
act now.
FILING A GUARDIANSHIP PETITION
You or your proposed guardian can go to court now to file a guardianship petition,
and ask a judge to immediately appoint the proposed guardian as the legal guardian of
your children. This means that the person you appoint will immediately become responsible
for your child. After the legal process is completed, the person you appoint will have
authority over your children right away.
Regular guardianship may be appropriate for you if you are sick and need to turn your
children over immediately to another caregiver, or it might be appropriate if your
children need to relocate to another school. For example, one Brooklyn mother was very
ill, and wanted to transfer the care of her 8-year-old daughter to her older daughter,
who was 20. This mom realized she was no longer physically able to care for her kids,
and was ready to transfer guardianship immediately.
In another case, a mother caring for her 14-year-old wanted to transfer care to her
sister, who was living in Puerto Rico, so the sister could enroll the child immediately
in school. Since both the 14-year-old and the child's father consented, the mother opted
for regular guardianship.
Where do you file?
A guardianship petition can be filed in either Family Court or Surrogate's Court. (A list
of these courts begins on page 28.) You must file a separate petition for each child. You
must file it in the county or borough where the child is living at the time the petition
is brought.
Who files?
A guardianship petition can be filed by you or by the proposed guardian. If you are
unable to go to court, you only need to sign a consent form (also called a "waiver form").
The form states that you agree the proposed guardian should take care of your children.
Whose agreement is needed?
The other parent of your children may have the right to custody of your children and,
therefore, has a right to notice of the guardianship case. If the guardian named in the
petition is not your children's other parent, you should get the other parent to sign a
consent form agreeing to your choice of guardian. The consent form should be signed in
front of a notary public. If you cannot get the other parent to agree, you will have to
give the other parent court papers stating when the guardianship case will be heard in
court. The other parent will then be allowed to come to court to object to the guardian
you have chosen.
If the other parent of your children has "abandoned" them and you cannot find him
or her, you will have to state this in the petition. [Abandonment usually means the
parent has had no contact with the children for more than six months prior to the
filing of the petition although able to do so.] Although you do not have to give notice
of the court case to a parent who has abandoned your children, you may have to show
the court what you did to try to find the other parent. If you know where relatives
of the other parent are, you may have to get a statement from them saying they do not
know where the parent is and the type of contact they have had with the person.
If the other parent is in jail, you should try to get him or her to sign a consent
form. Otherwise, you may have to give the other parent notice of the case.
You must also get the agreement of any children who are over 14 years old. Otherwise,
they must be given notice of the case and an opportunity to be heard in court. Even if
your child is under 14, the judge may want to talk to your child about his or her wishes.
The court may appoint a lawyer to represent your child, especially if there is a dispute.
When a grandparent, aunt, uncle, or cousin petitions for guardianship and there are
other relatives in the same category, they are supposed to sign a consent form or be
notified of the case. For example, when the aunt of a child petitions for guardianship,
she might have to give notice to another aunt. The court will decide whether this is
necessary.
When the person seeking guardianship is someone other than a parent (such as a
grandmother), he or she is supposed to get the husband, wife or any other adult he
or she is living with to agree in writing to the guardianship.
What you need to file a guardianship petition
In order to file a petition for guardianship, you should have the following:
- each child's birth certificate;
- for each parent, either a consent form, a death certificate, proof of incompetence,
or proof of abandonment;
- a consent form from any child who is 14 years or older;
- the proposed guardian's proof of identity and proof of residence;
- the proposed guardian's addresses since 1973 (for the State Central Registry for
Abuse and Maltreatment check) or when they turned 18, whichever is later; and
- addresses of all adults in proposed guardian's household since 1973 or when they
turned 18, whichever is later.
How to file a guardianship petition
Filing a guardianship petition is easy. The court clerk should help you fill out the
form, or you can get a lawyer to help you. A list of lawyers who can help you is below.
If you do not think anyone will object to your proposed guardian, you probably do not
need a lawyer to help you. Most importantly, you must have all the necessary documents.
The proposed guardian's name must be checked with the State Registry for Central
Child Abuse and Maltreatment. If you ask, the judge might appoint the person as temporary
guardian on the first court date. The judge can later appoint the person as a permanent
guardian if no abuse or neglect charges have been made against him or her, and if no one
challenges the guardianship. Some judges may order the Administration for Children's
Services (ACS) to investigate the proposed guardian before appointing them. The proposed
guardian and all adult household members will most likely also have to be fingerprinted
for a criminal background check.
When a guardianship petition should be filed
If you think someone will challenge your proposed guardian, you may want to go to court
to tell the judge why you want your chosen guardian to care for your children. You could
also file a standby guardianship petition, which would not go into effect immediately,
as explained above. Either method will help you to make sure that the person you chose
is the legal caretaker. Another reason to have a person appointed now is if the person
is already caring for your children.
If someone objects to your proposed guardian, then the guardianship case could take
several months. You may feel that you are too ill to go to court. If you have a lawyer,
your lawyer may be able to make arrangements for you to "testify" (tell the judge your
wishes) at home.
A guardianship appointment takes effect as soon as the judge rules. Once a guardian
is appointed by the court, if anything happens to you, your children already have a
legal guardian. This means the guardian can get benefits for your children, enroll
them in school, and consent to their medical care.
You do not give up all of your rights when someone else is appointed as the guardian.
You still have parental rights and the right to ask that the guardianship be revoked
(changed). It is possible that the children can still live with you. You can also still
make decisions about your children's care, as long as the guardian agrees. However,
remember that once someone else is appointed as the guardian of your children, you are
no longer their legal caretaker. You must decide if you want to give up these legal
rights.
You can also ask the court to appoint the person as co-guardian. This means that you
will continue to have guardianship rights with the other person. You and the co-guardian
decide together how the children will be raised. This is a good option if you want to
continue being the guardian and if you live with the other person, or if you completely
trust him or her. However, you should be aware that if a dispute does arise between the
co-guardians, they may have to go back to court to resolve the dispute if they cannot
agree between themselves.
FILING A CUSTODY PETITION
Instead of filing a guardianship petition, the person you choose to take care of your
children can file a custody petition. There is no reason to file both a custody and
guardianship petition.
There is no legal difference between the rights of a custodian and those of a guardian
in caring for your children. For most of the things that the person will need to do for
your children, such as enroll them in school or consent to their medical care, it should
not matter whether the person is a custodian or guardian.
A petition for custody is filed in Family Court. Unlike a guardianship petition, it
cannot be filed in Surrogate's Court. A custody petition usually is filed by the person
who is trying to get custody of the children in the county or borough where the children
live against the person who has the children.
In a custody case, the court does not check the State Central Registry for Abuse and
Maltreatment in Albany. The court may, however, require an investigation by the
Administration for Children's Services (ACS), especially if there is a dispute. There
may be a Home-Study done at the parties' homes. There are certain requirements for a
guardian that do not exist for a custodian. For example, a person cannot be appointed
as a guardian if he or she has committed a felony, but can be appointed as a custodian.
MAKING A TEMPORARY CARE AND CUSTODY DOCUMENT
You may need to have someone take care of your children temporarily if you are in
the hospital or are too sick to care for them yourself. Think about the relatives and
friends you trust. Once you have decided on someone, you can write a temporary care
and custody document.
A temporary care and custody document names the person you want to make the necessary
arrangements for the care, education, and well-being of your children. This includes
enrolling your children in school and arranging for their medical care.
This document will help the person you have selected to take care of your children.
It will not prevent your children's other natural parent from trying to get custody.
It is not a legal document and will not be recognized by a court. Although a doctor or
school should accept the document, there is no legal requirement that they must accept
it and they may not.
You should make a separate temporary care and custody document for each of your
children. You do not need a lawyer to make a temporary care and custody document. To
make one:
- write down the name of the person you are asking to take care of your children
temporarily, and what you want that person to be able to do;
- sign and date this document in front of a notary public and, if possible, also have
a witness sign it (other than the person you are asking to take care of your children).
You can find a sample of a temporary care and custody document below.
Give the original temporary care and custody document to the person who will care for
your children. That person should keep it in a safe place. Keep a copy for yourself.
ADOPTION
A person other than the biological parent of a child can adopt or become the legal
parent of the child. This means the person has all of the rights and duties of a parent.
The adoptive parent has the right to custody of the child and the right to decide where
the child lives and goes to school, the child's religion, and the kind of medical care
the child will receive. Once a child is adopted, the biological parent gives up all of
these legal rights unless the adoptive parent is your spouse or partner and files the
adoption as such. Arranging for the adoption of your child while you are able to help
in the process may give you the peace of mind that your child's future is secure. If
your child is adopted, he or she will have the same right to child support and benefits
from the adoptive parents as if he or she was their own children. If your child was not
born in this country, is undocumented and under age 16, adoption would allow your child
to become legalized if the adoptive parent is a permanent resident or a U.S. citizen.
The adoption process has to be completed before the child turns 16.
Once your children are adopted, the adoptive parent does not risk losing custody of
the child. The child is very secure with his or her new family.
In one case, a mother was raising three children, ages 10, 14, and 15. The mother was
an undocumented immigrant, and had no relatives in this country. She did have a friend
who was a United States citizen, and wanted that friend to become the legal parent of
her children. She chose adoption, enabling the children to become naturalized as U.S.
citizens.
You should get the help of a lawyer for an adoption. Before you see a lawyer, think
about who you want to adopt your children, and whether you can get the required consent
agreements discussed below.
Issues to consider
If your children are adopted, then you lose all of your rights to their custody and to
make decisions for them unless the adoptive parent is your spouse or partner and files
the adoption as such. (See page 14.) You also lose any benefits you are receiving for
them. (If you do not feel that you are ready to give up all of your rights as a parent,
you may want to arrange a standby guardianship, or file a regular guardianship proceeding.)
Adoption requires the consent of both parents if they are alive and have not abandoned
the children. A court must approve the adoptive parent and will conduct an investigation
or a "home study" to make sure the person is fit to be a parent. The court will request
that the adoptive parent provide fingerprints, and the court will request a clearance
from the State Central Registry for Child Abuse and Maltreatment. The court may hold a
hearing. This means that you, the adoptive parent or parents, the children, and anyone
else involved will have to go to court.
This option may affect your benefits and those of your children. (See the section called
"How Guardianship Decisions Will Affect Your Benefits for more details.)
If your children are adopted through a foster care agency, it is possible to have an
open adoption. This means that you can surrender you parental rights, but agree to keep
certain rights, such as visiting with your children. Unfortunately, there is no way to
make the adoptive parents follow the agreement, although you can take them to court. If
you want to do this, you should speak to an attorney first.
The difference between adoption and guardianship or custody
Adoption is permanent, while guardianship or custody can be temporary or revoked. The
people who adopt your children become their parents for the rest of their lives. The
children can get their Social Security benefits. Guardianship or custody is less final;
a guardianship or custody order could be changed by the court under certain circumstances.
Choosing an adoptive parent
A judge will consider many different things before signing an order of adoption. You should
consider these issues so that the adoptive parent you choose is accepted by the court. They
include:
- the relationship between your children and the adoptive parent;
- the adoptive parent's financial ability to care for your children;
- whether the adoptive parent has ever been reported for child abuse or neglect;
- your religion and your wishes for what you want your children's religion to be;
- the race and ethnicity of your children and the adoptive parent;
- the health of the adoptive parent; and
- whether the adoptive parent has a criminal record and, if so, the specifics of that
record.
Whose agreement is needed?
You will probably need the agreement of your children's other parent, whether or not you
were married when the children were born. If the other parent has abandoned your children,
you probably do not need his or her agreement. A lawyer can help you decide whether the
other parent's agreement is needed.
If one of your children is over 14 years old, that child's agreement is required.
If another person or agency has legal custody of any of your children, that person or
agency must agree to the adoption of that child. For example, if a child is in foster
care, the agreement of the Department of Social Services is required.
SECOND PARENT OR STEPPARENT ADOPTION
If you are raising your child with either a same sex or an opposite sex partner and
the other parent of the child is deceased or has abandoned him or her, you can do what
is called a "second parent" or "step-parent adoption." This means that your partner or
spouse who is not the child's parent can petition the court to become the child's other
legal parent without you losing any of your own parental rights. After this kind of
adoption is finalized, your partner or spouse will have exactly the same parental rights
as you do.
Issues to consider
The issues are similar to the previous section on adoption. It is always important to
consider that when a person petitions the court for adoption, the adoptive parent will
have to be fingerprinted, scanned for any child abuse or neglect history, and will be
subjected to a home-study by a social worker.
It is also important to consider whether you feel comfortable sharing
all of your parental rights. Once a second parent or step-parent
adoption is finalized, you are no longer the ultimate decision maker
for your child. If you are not comfortable with this, you may also
explore making your partner or spouse the standby guardian. (See
the "Appointing a Standby Guardian" section.) You should retain
a lawyer to help you with a second parent or step-parent adoption.
In doing so, you may discuss these potential issues. You can call
one of the lawyers listed below to discuss these issues.
FOSTER CARE
If the caretaker you have chosen for your child needs extra financial help, or if
you don't have anyone who can care for your children after your death, you may want to
consider the foster care system when planning for your children's future. Make sure you
read the "Issues to Consider" section below before you decide to place your children in
foster care. If you need care for your children now for a limited period of time, you can
place your children in foster care on a temporary basis. If you already have children in
foster care, it is important to talk to a lawyer about how this will affect your plans
for their future.
The Early Permanency Planning Project (EPP)
You can plan for your children's future through the Administration for Children's Services
Early Permanency Planning Project (EPP). Through this program, your children will be placed
in foster care when you are no longer able to care for them. Children in foster care are in
the custody of New York City's Administration for Children's Services (ACS). ACS is the City
agency which is responsible for children in foster care.
You can apply to EPP if you have a friend or relative whom you want to take care of your
children. You can also apply if you do not have anyone to care for your children and want
ACS to find a home for them. Even if you are able to take care of your children now, ACS
can refer your case to an agency, which can start the process of approving the foster parent
you choose or try to find a suitable family for your children if you do not have one.
If you have family members or friends who have agreed to take care of your children, the
main reason to apply to the program is if they cannot afford to take care of your children
without the foster care benefits or services that ACS provides. Under this program, they
would be foster parents, not guardians of the children. (A person cannot be a legal guardian
and get foster care benefits.) However, as guardians, they could apply for public assistance
benefits for your children (see "How Guardianship Decisions Will Affect Your Benefits"). If
you have a family member or friend whom you would like to work with to become foster parents
of your children, they will have to be trained as foster parents, and they will be fingerprinted
and scanned for "hits" on the State Central Registry for Abuse and Maltreatment.
For example, one Brooklyn mother of five children who applied for EPP chose her boyfriend,
who was also the father of one of her children, to care for her five children. The boyfriend
was on public assistance and would not have been able to afford to keep all the children together
in their apartment without the extra benefits provided by foster care.
There are private organizations which will help you find a home for your children. If you go
through a private group, you may still have to do a voluntary placement agreement through ACS. A
list of these groups listed below.
If you do not know anyone who can care for your children, the foster care agency can find a
home for them. The agency will arrange for you and your children to meet the proposed foster
parents so that you can get to know them and decide if you want your children to live with them.
Your children may be able to spend time with the potential foster family, which might include
staying overnight with the family.
If you apply for EPP, you will have to sign a "voluntary placement agreement" agreeing to
place your children in foster care if you can no longer care for them. The agreement does not
go into effect unless you die or are hospitalized or you want it to go into effect. You should
see a lawyer before signing this agreement. You have the right to change your mind at any time
and decide not to place your child in foster care.
Placing your children in foster care temporarily
If you are very sick you may need to place your children immediately in foster care. You can also
designate a friend or relative, but they have to be certified as a foster parent first. If you
don't have anywhere to place your kids, the Administration for Children's Services (ACS) will help
you find a family. One woman who chose this option had to be admitted suddenly to the hospital,
forcing her to leave her three children, ages 16, 10, and 6, home alone. Through the hospital and
ACS, she placed her children with a family in foster care.
You should think carefully before placing your children in foster care. You lose more control
over your children this way than by placing them with a custodian or guardian whom you trust. You
could also lose them permanently if they stay in foster care for a long time, especially if you do
not have regular contact with them.
To place your children in foster care, you must sign a "voluntary placement" agreement with the
ACS. You can place your children in foster care until a certain date, for example, when you are
released from the hospital. You can also place your children in foster care without setting a
time limit. It is important to be clear and specific in your voluntary placement agreement so ACS
cannot try to change things later. You should always talk to a lawyer before you sign a voluntary
placement agreement. If you are thinking about doing this, you should call one of the lawyers
listed below.
Getting your children out of foster care
If you have voluntarily placed your children in foster care, you can ask ACS to return your
children, and ACS must either give your children back or go to court to file a case charging you
with child abuse or neglect within 20 days. (If you placed them for a definite period, then they
have only 10 days to file a case.) If this happens, try to get a lawyer before you go to court.
If they don't return your children or take you to court, then you can sue ACS for the children.
If your children are still in foster care after 12 months, the court will look at your case
again to see what should happen to your children. You should have as much contact as you can with
your children while they are in foster care. You have the right to visit them, go with them to
their doctors' appointments, and to make major decisions about their welfare while they are in
foster care. (The foster care agency is supposed to help you maintain your relationship with
your children.)
ACS can pay you extra money for rent (up to $300 each month) to get your children out of foster
care if the main reason they are in foster care is that you do not have housing.
If your children have been placed in foster care through an abuse or neglect proceeding (ACS
took you to court), the way to get your children out of foster care is different. If you are doing
future custody planning for your children, you should speak to a lawyer about your children in foster
care. You may be able to get increased visits with the children, seek their return to you, or have
them placed with your chosen caretaker. You should definitely notify the agency of your future plans
for your children so they can begin the transition process.
Issues to consider
Once you place your children in foster care, ACS becomes involved in your life and in your
relationship with your children. The ACS caseworker and the caseworker from the private foster
care agency, if there is one, decide how often you can visit with your children and where you can
visit with them (usually only once every two weeks at the foster care agency). It is hard to see
your children when and where you want. (You can go to court to try to get more visitation).
Even if your children are placed with a relative, ACS continues to supervise the relative. ACS
can come to the relative's home at any time and can object to how the relative is caring for the
children. Because ACS has custody, it can remove the children from your relative's home or decide
that a different foster parent can take better care of the children.
Foster care might not be an appropriate option when the caretaker you choose works full time
because ACS requires that foster parents be certified, which can be time consuming. If the guardian
you choose is financially self-sufficient and leads a busy life, foster care might not be the best
option for your children.
How to get help so your children can stay with you
If you are having difficulty caring for your children, you may be able to keep your children if you
have some kind of help. You have the right to receive the following help for free, if it will keep
your children from going into foster care:
1. day care;
2. homemaker (a person who cares for your children at home);
3. housekeeper (a person who cares for your home);
4. home management services;
5. counseling;
6. parent aide;
7. transportation;
8. emergency cash; and
9. emergency shelter.
To get these services, you can call a "preventive services" agency. You can also call one of the
lawyers listed on pages 26 Ð28 for information about where to go for help. If you have an ACS caseworker
or one from the HIV/AIDS Services Administration (HASA), he or she must help you get these services.
HOW GUARDIANSHIP DECISIONS WILL AFFECT YOUR BENEFITS
The person your children are living with should be the one who receives their benefits for them. The
arrangements you make for the future care of your children should not affect your benefits unless your
children move out of your home, are placed in foster care, or are adopted by someone else.
If you write a will naming a guardian, the benefits you are getting for your children, such as welfare
or Social Security, will not change. Your benefits will also not change if you appoint a standby guardian
or sign a temporary care and custody agreement. If you appoint someone else to be the guardian now, but
you are still living with your children, then your public assistance benefits also should not change.
If your children live with someone else, then your children will
probably be taken off your budget and put on the welfare budget
of the person with whom they are living if he or she is receiving
public assistance. If the person is not on welfare, they can get
public assistance for the child, and it will be more than the child
is getting on your public assistance budget. If the person is a
relative, then the relative can apply for public assistance or add
the children to their budget without being the legal guardian or
custodian. A non-relative, however, may be required to be the guardian
or custodian. You may be able to continue getting benefits if your
children have left your home temporarily. In this case, you can
keep them on your budget.
A friend or relative caring for your children is not financially responsible for them. This means
that your children's guardian or custodian can get welfare benefits for your children even if they work.
Their income will not be counted toward your children's budget (except for Food Stamps). However, if the
person adopts your children, then that person is financially responsible for them. (If the children were
in foster care, an adoption subsidy may be available.)
If your children are receiving Social Security benefits, they will continue to receive these benefits,
even if someone else is their guardian. The person who gets these benefits on their behalf should be the
person caring for them.
Your children will not be able to get Social Security benefits from their guardian unless they are
adopted. If your children are adopted by someone else, you will lose your right to receive any benefits
for your children.
What if you want someone else to pick up your children's benefits?
If you are in the hospital or unable to go pick up your benefits because you are not well, you can name
a "representative payee" to get the benefits for your children and for you. We explain this in more
detail. You can name anyone you want to get your benefits for your children. That person does not have
to be the children's legal guardian.
Contents
© 2003 Gay Men's Health Crisis
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