Rarely do I have a chance to write about a topic that overlaps my two areas of practice (immigration law and estate planning law). I’ve blogged before about the importance of Standby Guardianship, especially for single-parent families where sole custody (legal and physical) of minor children resides with that single parent. This blog post extends that discussion to another group of parents who can safeguard their minor children from landing up in legal limbo - i.e. immigrant parents who are facing deportation.
THE SITUATION (PRE-2018)
Deportation - technically known as “Removal Proceedings” - creates a situation whereby children (documented or otherwise) are separated from their parents who face immigration offenses that may result in them being forced to leave the country. You can imagine the difficulties faced by such families when such separation (now legally known in New York state as “administrative separation”) occurs.
It’s often the case that the children are left in legal limbo, given that they are minors. Without a properly appointed legal guardian, such minor children’s care defaults to the NYC’s Administration of Children’s Services and its foster homes — while they await adjudication by the New York Surrogate Court as to who takes over as their legal guardian. This is a situation that has plagued single-parent immigrant families where there is no other parent to take the children when they are arrested, or where both parents are facing Removal Proceedings.
Prior to June 2018, Standby Guardianship laws in New York state (as regulated by the Surrogate’s Court Procedure Act) were confined solely to cases where parents were debilitated and gave their consent, or were incapacitated or deceased. Such laws did not allow for parents facing Removal Proceedings to designate a standby guardian for their minor children.
WHAT COMPOUNDED THE PROBLEM
For such children - in addition to the deep trauma of separation from their parents - there was the reluctance or hesitation of well-meaning relatives or friends to go to court to petition for temporary or permanent guardianship. Relatives who scrambled to care for them were forced to go through proceedings in Surrogate Court to petition for guardianship. This often meant risking their own immigration status, as court proceedings on child guardianship involve lengthy investigations as to suitability — which invariably meant the court’s scrutiny, including background checks on these relatives that could result in their own deportation.
THE SOLUTION — STANDBY GUARDIANSHIP EXTENDED
Last week (June 28) marked the one-year anniversary of New York State’s legislation that extends the use of Standby Guardianship in Administrative Separations. Now, parents facing Removal Proceedings can rely on the state’s Standby Guardianship law and forms to appoint an adult of their choice as a standby guardian of their children. Any parent(s) in immigration detention facing Removal Proceedings (or about to) can simply complete a form to designate a temporary guardian to care for their children, without that adult having to go to court to obtain legal and physical custody. This is a meaningful legislative change for parents facing arrest, detention, incarceration, removal and/or deportation, in connection with a federal immigration matter. And for loving relatives and friends to care for their children without having to go through court proceedings.
The documentation is easy to complete, and has legal force once signed by the consenting parent(s) in the presence of two adult witnesses. And there does not have to be an existing or eminent Removal Proceeding or arrest or detention for the document to be executed. Once the "triggering event” i.e. the detention of the parent(s) by immigration authorities takes place, the appointed standby guardian automatically takes over the care and custody of the children immediately without having to go to court to petition for such guardianship. Guardianship authorizes them to make all decisions relating to the well-being of the children, and for the latter to reside with them. Needless to say, this can help ensure stability for the children and lessen the trauma of separation from their parents.
As it is with any parent in New York who appoints a Standby Guardian, such guardianship only lasts for two (2) months (60 days). What happens when the legislative timeline expires? The Standby Guardian will have to petition to the Surrogate Court for permanent legal guardianship. Or another relative or possible guardian can petition. For such permanent guardianship proceedings, the most suitable candidate would be a responsible adult who has demonstrated genuine support and effective care of the minor children, or the ability to do so going forward, and who does not face possible immigration issues herself whether presently or in the future. The court is likely to investigate the petitioner’s personal background as regards stable employment and home, emotional evenness, and closeness to the children. While this isn’t an ideal situation, the 60 days gives friends and relatives time to plan for their possible choices and consult attorneys.
For the form that can be used to designate a Standby Guardian, see Section 1726 of the New York Surrogate Court’s Procedure Act (scroll down to 4(b)(iii) for language for the form). Note: This form can be used by all NY residents, regardless of immigration status.