CUSTODY ISSUES

What if you are the parent with sole custody of your child? What if the other parent is, in fact, completely unfit to be a parent due to drugs, alcohol, mental health issues, incarceration, etc.? What happens if, excuse the morbidity, you die or become completely incapacitated? Remember - an award of sole custody does not mean the other parent's parental rights have been terminated. Custody of the child may go to the other parent or other relatives of you and/or the other parent may fight over custody and visitation. Well nothing can prevent someone from starting a litigation but one thing you can do is express your wishes in a will and a Standby Guardian Designation. Standby Guardianship is another alternative for transferring the custody and the care of children to another person. Standby Guardianship allows the custodial parent to make future plans for his or her children without having to legally transfer decision-making power. I usually recommend both a will and a Standby Guardian Designation but here is a discussion of the Standby Guardian Designation Law in New York State (Surrogates Procedure Act Section 1726):
I. Designation of Standby Guardian. New York's standby guardianship law is developed for parents who are fatally ill or progressively, chronically ill, and who want to plan for their children's future. There are two ways that a standby guardianship may be formed: by petition, prior to a triggering event; or by designation at any time, ideally to be followed by petition even after a triggering event. A particular person may be nominated as standby guardian under either method. The early-petition strategy requires the parent to declare that she has a "progressively chronic illness" or an "irreversibly fatal illness. She must state the basis for this, although she does not have to file a physician's statement. [Surrogate 1726.3(b)(ii)] The petition must list any or all of four triggering events: mental incapacity, physical debilitation plus consent, consent alone and death. [Surrogate 1726.3(b)(i) and (d)(ii) and (e)(iii)]
The designation strategy, on the other hand, is a step toward guardianship, with formalization through the court occurring at some later point. The parent prepares a document that lists two triggering events: mental incapacity and physical debilitation plus consent. An optional designation form is provided in the statute. By contrast with the early-petition process, the statute does not require death to be listed as a triggering event, although legal practitioners' designation forms in New York City do so list it. The law permits the designation to go forward if the parent dies after the designation is created but before the petition is filed. [Surrogate 1726 4.(b)] In practical terms, the major difference between the two strategies is that the early-petition process allows a parent to resolve all issues relating to future care of her child in court, before she becomes severely incapacitated. The designation process allows the plans to develop privately, and shifts the administrative burden to the standby guardian. The parent retains "full parental rights" after the guardianship begins. [Surrogate 1726.4(b)(iii)] This amounts to concurrent authority shared by the parent and the standby guardian. [Surrogate 1726.7] In practical terms the parent has primary authority unless she is unable to exercise it. The parent may revoke the designation either orally, in writing, or in any other way that indicates intent. [Surrogate 1726.4(f)] (Practitioners forms used in New York City state that a revocation is to be in writing.] The designation is filed in court together with a petition requesting appointment of the standby guardian.
II. Agreement of the Non-Custodial Parent. The standby guardianship law is silent as to the involvement of the non-custodial parent. He is not required to sign the designation. The legal provisions applicable to general guardianships require notice to be given to parents if they are in the state and their residences are known. Moreover it says that "No process shall be necessary to a parent who has abandoned the infant or is deprived of civil rights or divorced from the parent having legal custody of the infant or an incompetent who is otherwise judicially deprived of the custody of the infant…." [Surrogate 1705.1(a) and .2] At a minimum, there must be notice to the parent, or an affidavit describing why no notice is necessary, or consent of the parent. (Attorneys state that in Family Court, where standby guardian cases usually are heard, judges typically would require notice to an out-of-state parent if the residence is known.)
III. Role of the Standby Guardian. A standby guardian's authority does not begin until one of the triggering events listed in the petition or designation document occurs. Upon the occurrence, the standby guardian must gather the required evidence. Evidence would be a physician's determination of incapacity or debilitation, a parent's written, attested consent, a death certificate or funeral home receipt. Under the early-petition strategy the standby guardian has 90 days to gather the evidence and file it in court to activate the guardianship. [Surrogate 1726.3(e)] Under the designation strategy, the standby guardian has 60 days to do this, and the evidence must be accompanied by a petition for appointment. [Surrogate 1726.4 ( c)] If the documents are not filed within 60 days, the guardian's temporary authority lapses. If lapsed, a later filing can occur, and usually the request for renewed authority is granted. [Surrogate 1726.4(c)] The standby guardian's authority is concurrent with the parent's, and may include parental kinds of decisions relating to the personal welfare of the child, unless Surrogate's Court has also granted authority over the child's property. [Surrogate 1726.7] Once the guardianship becomes permanent, unless it is revoked or rescinded, it lasts until the child's majority or until another intervening event like the child's marriage. [Surrogate 1707.2]
IV. Court Process. Court process for a standby guardianship can commence either with filing a petition for appointment prior to a triggering event; or with filing a designation document along with a petition for appointment after the triggering event occurs. The law states that the filing is for "the sole purpose of safekeeping and shall not affect the validity of the appointment or designation." [Surrogate 1726.8(a)] In other words, the guardianship is not effective until the court makes a finding based on declarations in the designating document and the petition. The court must ascertain whether the guardianship will promote the child's best interests. [Surrogate 1726.3.(d)(I). See also Matter of Guardianship of Rene O.C.606 NYS 2d 872 (1993)] To do that, a court hearing is implied, even if the petition is uncontested. [Matter of Guardianship of F.H., 632 NYS 2d 777 (1995)] Notice is given to any parent living in the state in a known residence, unless the parent is adjudicated unfit, incompetent, etc. Notice must also be given to children named in the petition who are 14 years or older. [Surrogate 1705] A parent's presence in court can be waived, if she is too ill to appear. [Surrogate 1726.3 ( c)]
Under the early-petition strategy, once the court has made a decision, the matter lies dormant until one of the specified triggering events occurs. The standby guardian then files confirming documents within 90 days of the event, along with a petition for appointment as guardian. [Surrogate 1726.3(e)] Under the designation strategy, the documents are filed within 60 days of the triggering event, along with a petition for appointment. [Surrogate 1726.4( c)] The court then examines whether the facts are as stated and the child's interests will be promoted. [Surrogate 1726.4(e)] Note that this process can take place either in Family Court under the Family Court Act, Title 6, or in Surrogate Court under the Surrogate's Act, Title 17.
Overall, the New York Court retains a great deal of flexibility and discretion.
See McKinney's Consolidated Laws of New York Annotated Surrogate's Court Procedure Act, Chapter 59-A of the Consolidated Laws, Article 17 – Guardians and Custodians, Section 1705, 1707, 1726.