Articles Posted in Guardianship Law

In In re TN 2020 N.Y. Slip Op. 50548 (N.Y. Fam. Ct. 2020), a case about the guardianship of a minor child, significant constitutional rights were at stake. The petitioner, acting on behalf of the maternal aunt seeking guardianship of the child, filed a motion to waive service of process upon the child’s father. This motion raised critical questions regarding due process and a parent’s fundamental right to the care and custody of their child.

In a guardianship proceeding in New York, the requirement of service of process is a critical component of safeguarding the due process rights of all involved parties, particularly the parents. When initiating a guardianship petition, the petitioner must ensure that proper notice is served upon all interested parties, including the parents of the child in question.

Service of process involves delivering a copy of the petition and relevant legal documents to the respondent or respondents, typically by personal delivery. This step ensures that parents, who are typically considered interested parties in guardianship proceedings, are informed of the legal action being taken and are given an opportunity to participate in the proceedings.

In Olga L.G.M. v. Santos T.F., 164 A.D.3d 1341 (N.Y. App. Div. 2018), a case concerning a guardianship petition under Family Court Act article 6, a mother appealed from an order dismissing her petition without a hearing. The order was issued by the Family Court of Nassau County, prompting the mother to challenge it.

A New York guardianship petition under Family Court Act article 6 is a legal action filed in the Family Court to request the appointment of a guardian for a minor child. This petition is typically filed by a parent, relative, or other interested party seeking to obtain legal authority to make decisions regarding the child’s welfare and affairs.

Under Article 6 of the Family Court Act, the court has the authority to appoint a guardian for a child if it is deemed to be in the child’s best interests. Guardianship may be sought for various reasons, including when a parent is unable to care for the child due to incapacity, incarceration, or other circumstances.

The case involves an appeal from an amended order of fact-finding and disposition by the Family Court, Kings County, regarding allegations of neglect against the mother of two children, India G. and Madison G. The order, issued in November 2018, placed the mother under the supervision of the Administration for Children’s Services (ACS) for three months. The appeal questions the finding of neglect against the mother and the subsequent placement under ACS supervision.

The ACS is the New York City agency responsible for safeguarding the welfare of children and families within the city. It operates under the jurisdiction of the New York City government and is tasked with various responsibilities related to child protection, foster care, adoption services, and juvenile justice.

ACS works to ensure that children in New York City are safe from abuse, neglect, and exploitation. It investigates reports of suspected child abuse or neglect, provides services to families in need of support, and, when necessary, places children in foster care or other out-of-home placements to ensure their safety and well-being.

Guardianship in New York involves a legal arrangement where someone, known as a guardian, is appointed to make decisions on behalf of an individual who is unable to make decisions independently. This often arises in situations where the person, called the ward, faces challenges due to age, disability, or other incapacitating factors.

For adults, guardianship typically comes into play when an individual is deemed incapable of managing their personal and financial affairs. This could be due to intellectual disabilities, mental health issues, or other conditions that hinder their decision-making abilities.

In contrast, guardianship for children involves a legal relationship where an adult is appointed to care for and make decisions for a minor. This might happen when parents are unable to fulfill their parental responsibilities, either due to incapacity, death, or other circumstances.

A guardian of a minor is a person appointed by the court to make decisions for a child in the event that the parents are unwilling, unavailable or unfit to care for the child.  While the court will typically appoint a family member or a close friend to be the guardian, according to Surrogate Court Procedure Act §1703, anyone can seek to become a guardian by petitioning Family Court.  The court will then hold a hearing to determine whether the petitioner is suitable and whether the appointment would be in the best interests of the child.  In the case of In re A.W.J, the Bronx County Family Court considered whether a petitioner who was a non-parent, a non-relative, and a non-caregiver had standing to petition for guardianship of a child.

The petitioner was a friend of the child who had spent some time with the child and had cared for the child a “handful” of times over the years.  The court denied her petition for guardianship concluding that there was not a sufficient nexus between the her and the child for the petitioner to have standing to petition the court to become the child’s guardian.

The courts have found that in order for a person to have a sufficient nexus that is required for standing, the petitioner must have a blood, marital, caretaking, or social relationship with the child.  Otherwise the person is basically a stranger.  The court distinguished between people who have a friendship relationships with children versus those who have caregiving relationships.  If the relationship is one of friendship, while the court would find it commendable that the person would want to become the guardian of the child, the court would likely find that the person would not have standing to seek guardianship.  An example of a “friendship” relationship would be a family friend who socialized with the parents regularly and, as a result, was frequently around the children so that the children have some familiarity with that person.  While this person would not be considered a stranger in the literal sense, the person would not have a close enough nexus with the child to have standing to become the child’s guardian.  Citing Matter of Roland F. v. Brezenoff, 108 Misc 2d 133 (1981), the court noted that it is not enough for the person to have taken care of the child “from time to time,” or to have merely known the child for a number of years.

NY Slip Op 2017 00651

February 1, 2017

This is a guardianship proceeding held pursuant to Mental Hygiene Law Article 81. In this case, Dimitrios Spanos a successor guardian for Yolanda TM sought to settle his account. He is appealing from and Order of the Supreme Court entered on 12/12/13 in Queens County. This ruling awarded him commissions for his guardianship (SCPA 2307(1) in the amount of $14, 496 and attorney’s fees in the amount of $1,823.

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May 4, 2016

Judge Spina commented that in the Guardianship of V.V. 470 Mass 590 (2015) the court ruled that a parent who has a minor child subject to a guardianship proceeding pursuant to G.L. c. 190B. Sec. 5-206 and can’t afford a lawyer does indeed have a right to counsel. The issue here is if a parent has a right to counsel when a parent files a petition to have a guardian removed, or the terms are modified. He court finds that a parent has a right to counsel when they file a petition to have a guardian removed, or the terms modified. The court finds that a parent has a right to counsel for those types of proceedings. The court also offers guidance to the probate and family court, when these guardianship issues occur and to create standards regarding right to counsel.

The plaintiffs are mothers of children where guardians have been appointed pursuant to G.L. c. 190B, Sec. 5-206. They brought this action in County Court, contesting a policy put in place by the Chief Justice of Probate and Family Court regarding the appointment of counsel in guardianship proceedings (G.L. 190B). They challenged a memorandum that was released to the court personnel regarding this issue.

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Jeffery Kaplan, Esq. of Levine & Kaplan for Petitioner

Ari Gourvitz, Esq. of Gourvitz and Grourvitz for Respondent

The parents jointly sought child custody to the Petitioner mother, and voluntary termination and surrender of the father’s parental rights. At the time of the hearing the child was one year old.

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