Family Law

Q: I know a child who lost his or her only parent or both parents in the WTC disaster. The parent provided for me to become the caretaker of the child in a will. What steps do I need to take to become the child's legal guardian?

If the parent specified you to be the child's guardian in a will, you must complete guardianship proceedings in either the Family Court or Surrogate's Court in the county in which the deceased parent resided, as described in more detail below. The parent's will must also be duly admitted to probate. (See the Probate Section of this Handbook for more information about wills.)

The deceased parent did not specify another person to care for his or her child. What do I do if I wish to become a guardian of, take custody of or adopt the child? What's the difference between guardianship, custody and adoption?

Guardianship: A guardian is a non-parent to whom the Court gives authority to take responsibility for the care of a child. An appointment of guardianship may be permanent or temporary, and it expires when the child reaches the age of 18. You can petition the Court to be appointed as the guardian of a child and/or the child's property if you have the ability and want to take responsibility for that child.

To file a petition for guardianship, you can go to either the Surrogate's Court or the Family Court in the county where the child resides and ask the Clerk of Court for the necessary legal forms. If the Court appoints you as guardian, you will receive Letters of Guardianship. You will need these documents for matters such as enrolling the child in school or for hospital emergencies. Please note that Letters of Guardianship are only valid in the state where they are issued.

If there is an estate that the child will inherit, it is best to file in Surrogate's Court, together with the administration of the estate.

Custody: Having custody means that you are legally responsible for the care, control and maintenance of a child. Unlike adoption, a custody proceeding does not establish a parent-child relationship for legal purposes. If the child has a surviving parent, that parent has the right to take custody of the child. If you want to seek custody of a child with a surviving parent, you must have the court papers delivered to that parent notifying him or her of the date to be in court for the hearing. If the parties agree about the custody of the child, the judge may enter an order of custody on consent without a formal hearing. If the parties cannot reach an agreement, the Court will hold a hearing.

You can go to the Family Court in the borough in which the child resides or has resided for the past six months to start custody proceedings. The Family Court is user-friendly, and most petitioners in Family Court are not represented by an attorney. You should ask the Clerk of Court for the necessary legal forms, including a Petition for an Order of Custody.

Adoption: An adoption is a legal process in which a child's legal rights, privileges and duties with respect to his or her natural parents are terminated, and the Court gives permanent legal responsibility for the child to the adoptive parents. The adopted child and adoptive parents will have the same legal relationship with each other as in a natural parent-child relationship. If you wish to adopt a child, you can initiate proceedings in either the Surrogate's Court or Family Court in the county where the child resides. You may wish to have an attorney to guide you through the adoption process, but this is not required. Please note that if the child has a parent that is still living, an adoption cannot be completed unless the surviving parent's parental rights have been terminated. This can be done during the adoption process upon proving that the surviving parent has no contact with the child or that he or she is abusive.

Will I need to get a lawyer to represent the child?

No, but in some cases, the judge will assign a lawyer called a law guardian for the child. Law guardians are lawyers who are appointed by the court to represent the wishes and interests of the child. There is usually no charge for representation by a law guardian assigned by the court.

Are there any documents I should bring with me to court?

You should bring the child's birth certificate, any prior orders concerning the child (such as the parent's judgment of divorce, if applicable, any orders of custody, orders of visitation, orders of protection, or dispositions on abuse or neglect proceedings), and any legal documents available showing the status of the missing or deceased parent, such as the death certificate if you have it. (See the Death Certificate Section of this Handbook).

How do the courts decide whether someone is an appropriate adoptive parent, custodian or guardian?

The Surrogate's Court and Family Court all make determinations based on what is in the best interests of the child. To assist the Court in making its determination, the judge may order an investigation and report by the Department of Probation, the Administration for Children's Services or a law guardian.

What if a child inherits a sum of money or receives funds from an organization?

Funds received by a child through inheritance or award will be administered by a guardian of the child's property. To file a petition to be appointed as guardian of the child's property, you should go to the Surrogate's Court in the county where the child resides. The child's assets or income must be invested as directed by the Court for the child's benefit. The Court may require the guardian to post a bond to ensure compliance with rules of the Surrogate's Court and laws regarding the investment of a child's assets. If there are assets, the best scenario is for the guardian of the child to be appointed the guardian of the assets. Both of these processes can be completed in Surrogate's Court. Usually, the funds are turned over to the child on the child's 18th birthday, at which time the guardianship is typically ended.

What if I am responsible for the care of a child who has received funds and I need to spend money on the child's behalf?

With the permission of the Surrogate's Court, as guardian of the child's property you may pay certain expenses on behalf of the child using funds held by you on the child's behalf. The Court will decide each request based on the best interests of the child. You must petition the Court for approval of each expense in advance or, if the Court deems it to be appropriate, you may be able to obtain a monthly stipend for regular expenses. While Courts approve spending on a case-by-case basis, expenses that are typically approved include education, medical and other support.

Do guardianships apply for adults as well? What if I now have to take care of an adult who is incapacitated?

Yes, under the Mental Hygiene Law in New York, guardianship may also be obtained over an adult when the adult is incapacitated or has become unable to take care of his or her personal needs and property. You can file a petition to become a guardian of an adult and his or her property in Court.

Where do I file the petitions?

If you want to file a petition in Surrogate's Court, a list of addresses for Surrogate's Courts in New York can be found in the Probate section of this Handbook.

If you want to file a petition in Family Court, addresses for the New York City Family Courts are as follows:

Bronx County
900 Sheridan Avenue
Bronx, New York 10451
(718) 590-3321

New York County
60 Lafayette Street
New York, New York 10013
(800) COURT-NY (268-7869)

Kings County
283 Adams Street
Brooklyn, New York 11201
(718) 643-2650 or 52

Queens County
89-14 Parsons Boulevard
Jamaica, New York 11432
(718) 520-3991

Richmond County
100 Richmond Terrace
Staten Island, New York 10301
(718) 390-5460

Where can I get additional information or assistance?

The Legal Referral Service of the New York City and County Bar Associations
(212) 626-7373, www.ilawyer.com (click on "New York City"); and Law Help, New York's Online Legal Referral and Information System, at www.lawhelp.org

The Children's Aid Society
105 East 22nd Street
New York, NY 10010
(212) 358-8930

Legal Services for New York City
350 Broadway
New York, New York 10013
(212) 431-7200

SHIELD Program
42 West 44th Street
New York, New York 10036
(212) 626-7383

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