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To complete the standby guardianship process, the custodial
parent or the designated standby guardian must petition the
court for guardianship. If a triggering event has not occurred,
the custodial parent must file the petition. (Note: Your case
will be more compelling if the parent is available to testify
as to his "best interest" reasons for selecting
a particular person as standby guardian.) If a triggering
event has occurred, the standby guardian must petition the
court for guardianship within 90 days of the triggering event
to keep his/her authority under the designation from lapsing.
The petition should include:
- Name and address of the designator;
- Name, address, telephone number, and date of birth of
the standby guardian and of any alternate standby guardian;
- Statement that standby guardian's authority shall take
effect upon the occurrence of triggering event, such as
debilitation, incapacity or death;
- Statement by a clinician that designator suffers from
a chronic illness, injury or disease from which he may not
recover;
- Date of triggering event (if it has occurred);
- Name and address of any other parent of the child, if
known;
- Consent of the other parent, or statement why that parent
is not assuming responsibility for child;
- Statement as to any other custody order or pending litigation
involving the child;
- Names and addresses of all persons who child has lived
with in past five years; and
- Statement as to why granting petition is in the best interest
of the child.
The following documents should be included with the petition:
- a copy of the designation;
- proof of the triggering event (such as a copy of death
certificate);
the child's birth certificate;
- proof of notice to non-custodial parent; and
- affidavit of consent by non-custodial parent or reason
why that person is not assuming responsibility for child.
Notifying the non-custodial parent(s)
Non-custodial parents must be notified that a Standby Guardian
Petition has been filed in Superior Court within 10 days of
filing. Notice must be by summons, certified mail or any other
method provided for in the SCR Dom. Rel. Rules of Civil Procedure.
If the parent's address is unknown, reasonable efforts, such
as required in any other custody action, must be taken to
find the parent and reported to the Court.
Challenges to standby guardian designation
Non-custodial parents may contest a standby guardian designation
and petition by initiating a child custody proceeding in Superior
Court, or in any other court that could exercise jurisdiction.
The non-custodial parent has 20 days after receipt of notice
to request a child custody hearing.
Court Process for Standby Guardianship
There is a rebuttable presumption that the standby guardian
designate is capable of serving as standby guardian. Further,
the statute provides that court approval of the standby guardian
designate is in the best interest of the child if (a) the
designator is the sole surviving parent, (b) the parental
rights of any noncustodial parent have been terminated, or
(c) all parties consent to the designation. The Court may
approve the designation without a hearing if the conditions
in item (b) are met; however, some family court judges have
indicated they prefer to set the matter down for a hearing
before issuing a final order.
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