A parent can appoint a standby guardian—someone they trust—to step in for their child if the parent is declared mentally incapacitated, becomes physically debilitated, or, as amended in 2018, if they are subject to an adverse immigration action (like detention or deportation). This amendment specifically helps undocumented immigrant parents safeguard their children during immigration crises.
Standby guardianships allow parents to keep their parental rights even when the guardianship is in effect.
Parents can revoke the standby guardianship at any time using a revocation form.
The standby guardianship form does not require notarization but must be witnessed by two adults over 18 who are not the standby guardian.
There are two phases of standby guardianships: the private phase and the court phase, with the private phase being the focus of the discussion.
Private Designation Phase and Family Safety Planning
The importance of formal arrangements over informal ones cannot be overstated.
Informal arrangements can be risky, especially in cases of medical emergencies or school enrollment issues.
Family safety planning involves discussing serious issues with trusted family members or friends who might care for the children.
The question of whether an undocumented person can be a standby guardian is complex, with pros and cons, and sometimes the only available option.
Challenges with Undocumented Standby Guardians
Undocumented standby guardians face vulnerabilities, especially with the Trump administration’s policies.
Schools, churches, and hospitals are now off-limits to ICE, creating more fear among undocumented individuals.
It is recommended to name an alternate documented guardian who can take over if the undocumented guardian is unable or unwilling to serve.
If the parent is detained or deported, the children can end up in Child Protective Services and foster care.
Documentation and Forms for Standby Guardianship
Parents should give the standby guardian a copy of the signed form and the standby guardian should sign and date it.
Attaching copies of the children’s birth certificates to the standby guardian form is recommended.
The standby guardianship form includes various documents such as the family safety information form, child information form, checklist of documents, and revocation form.
The form has a springing consent, meaning it only becomes active in case of an adverse immigration event.
Proving Adverse Immigration Events
The standby guardian needs evidence of the adverse immigration event to prove the standby guardianship is active.
The online detainee locator system can help the standby guardian find the detained parent’s location.
The system can be searched by A number or biographical information.
Private Phase Duration and Court Phase
The private phase lasts for six months, and if extended, the standby guardian must file a petition in the circuit court.
The court phase involves legal help for the standby guardian to file the petition.
The court phase requires hearings, and the court can order counsel for the child or an investigation of the home.
The wishes of a child over 14 must be set forth in the petition, and the child must attend the hearing if the standby guardian has served for more than three months.
Complexities of Standby Guardianship Forms
The standby guardianship form is complex, especially the Spanish version, which is 11 pages long.
The form requires both parents’ signatures if they are in agreement, with space for two parents’ names.
The form is currently being fixed by the court to accommodate both parents’ names.
The form includes sections for designating the standby guardian and alternate standby guardian, and requires consent from both parents unless exceptions apply.
Exceptions to Parental Consent
Exceptions to parental consent include if the other parent is mentally or physically unable to give consent, the child has been abandoned, the parent lives in another country, parentage is unknown, or the parent cannot be located.
The strongest exception is if the parent lives in another country, as their consent is not required.
The form includes a springing consent section, requiring the standby guardian to check boxes indicating adverse immigration events.
It is recommended to check all three boxes for comprehensive coverage.
Guardianship of the Person and Property
The guardianship of the person includes physical care, educational decisions, medical decisions, and travel arrangements.
The guardianship of the property includes applying for public benefits and child support.
The signature page requires signatures from both parents, two witnesses, and the standby guardian.
The alternate standby guardian signature is optional but recommended.
Hypothetical Situations and Legal Considerations
These matters can get even more complicated if either on the following scenarios applies:
- Where one parent is documented and the other is undocumented.
- In situations where parents who do not trust the other parent to care for the children.
- The potential for guardianship cases if the other parent objects to the standby guardianship.
Consult a knowledgeable lawyer to discuss your case specifics.
Revocation and Court Phase Details
Parents can revoke the standby guardianship at any time during the private or court phase.
The revocation form is provided to parents to revoke the standby guardianship.
The court phase involves filing a petition by the standby guardian, which requires hearings and can lead to a regular guardianship.
The court phase includes rules and laws similar to regular guardianships, with specific requirements for documentation and hearings.
Standby guardianships can help families weather uncertain times by allowing them to plan ahead. This need has never been more critical. Do your research and consult an attorney to make sure you have the information you need to move forward.