Guardianship

Court Appointed Guardian for a Destitute or Dependent Minor

Unfortunately, not every child has a homelife that allows them to develop and thrive. In these instances, the courts may decide it is in the best interest of the child to appoint a guardian who is not the child’s biological parents. Ideally, a child will be raised in a home with the child’s biological parent(s); but, if maintaining a permanent home with the child’s biological parent(s) is not in the child’s best interest, the court’s may seek an alternative placement that allows the child to thrive.

Social Security Law § 384-b outlines the legal procedures for appointing a guardian for a destitute or dependent child. A guardian is a person, over 18 years of age, who has the ability to make legal decisions for another and takes legal responsibility for another’s care. The law’s primary goal is to ensure that the subject child has a permanent home that provides the best opportunity for that child to grow into a responsible, productive citizen. Often before a guardian is appointed, services are provided to the family in an attempt to determine whether breaking-up the child’s family can be avoided. The legislative intent behind SSL § 384-b seeks to preserve parental rights, when possible, while also making sure that the child has a positive, nurturing relationship with their caregiver(s). Thus, whenever possible, the law seeks to help heal broken families rather than rushing to get the courts involved.

However, if necessary, a Petition for Appointment of a Guardian may be filed by an authorized government agency, foster parent, non-parental relative, or a child over 14-years-old may file on their own behalf in the county in which the child resides, in either Surrogate’s Court or Family Court.  While both courts have jurisdiction over Guardianship proceedings, Family Court is the more appropriate veue when the guardianship sought is only for a person, and not for property.  Ultimately, for the court to appoint a guardian, one or more of the following circumstances must be shown by clear and convincing evidence:

  • Both parents are deceased and there was no prior appointment of a legal guardian;
  • The child has been abandoned for the six (6) months immediately preceding the filing of a guardianship petition, or the parents have in some way given up their parental rights and obligations. A child is considered abandoned when the parent has failed to make a realistic and foreseeable plan to provide an adequate and stable home, despite being physically and financially capable of doing so, failed to visit or communicate with the child, and behaves in a way that demonstrates an intent to give up their parental rights and obligations;
  • The parent is unable to provide proper care for the foreseeable future because of mental illness or intellectual disability. Mental illness may be grounds for a guardianship proceeding when the illnesses’ symptoms puts a child in danger of neglect. Intellectual disability is an intellectual impairment, originating during the developmental period, that impacts adaptive behavior to such an extent that there is a danger of neglect. When there are guardianship proceedings involving either mental illness or intellectual disability, the court must consider testimony of a psychologist or psychiatrist;
  • The child has been permanently neglected, meaning that, for either a one-year period or fifteen (15) out of the most recent twenty-two (22) months, the parent failed to have substantive and continuous contact with the child, or repeatedly failed to maintain contact, despite being physically and financially able to. In these instances, any government agency with legal control over the child at the time of the guardianship proceeding must utilize their best effort to strengthen the family bond so that the child can grow in a stable home with their biological parent; or
  • Severe or repeated abuse, where the parent causes the child non-accidental physical injury that causes, or creates, a substantial risk of death, serious or prolonged disfigurement/physical or emotional impairment of physical or emotional health.

Even in cases where there is the possibility of prior or ongoing abuse or neglect, the biological parent has a right to be heard by the court and will receive notice of the guardianship proceedings, unless there has already been a clear relinquishment or termination of their parental rights and obligations.

Every child in the State of New York has the right to be raised in a stable, secure and safe environment in the custody and care of someone, who although not perfect, is able to provide for the child’s best interest. Sometimes, to make sure that happens, the courts have to get involved. At Westchester Matrimonial, our attorneys only have one goal: helping achieve the child’s best interest. Our attorneys will listen to your unique circumstances and help you understand whether filing a Petition for the Appointment of Guardian is the correct course of action for the child’s best interest. At Westchester Matrimonial, we focus exclusively on family/matrimonial law because we believe that family comes first.