Who can get guardianship of a child and how?

Guardianship is a legal arrangement that gives someone the legal authority to care for a child who is not their own. Guardianship is usually given when the child's parents are unable to care for them for some reason.

In New York, guardianship of a child is different from custody and visitation:

• Guardianship means that someone who is not the child's parent becomes responsible for the child's care, welfare, and education.
• Legal Custody refers to a parent's right to make important decisions about the child's life, such as where they go to school, what religion they practice, and what medical treatment they receive. Physical Custody, or Residential Placement refers to where the child lives. 
• Visitation refers to the time a non-custodial parent spends with the child.

In New York, legal guardians who are relatives are also called kinship caregivers. Kinship caregivers can include grandparents, aunts, uncles, cousins, and family friends.

A non-parent can only receive custody or guardianship over a parent’s objection if they first prove that there are “extraordinary circumstances.” It is not an extraordinary circumstance that you think you can care for the child better than the parent.  Any adult can ask for guardianship of a child, but, if there are extraordinary circumstances,  the court will consider several factors before making a decision, such as:

• The relationship between you and the child
• The child's wishes (if they are old enough to express them)
• Your ability to provide for the child's needs
• The ability of the child's parents to provide for the child's needs

If you are considering asking for guardianship of a child, it's important to understand that the court's main priority is the best interests of the child, if the court first decides there is an extraordinary circumstance to disregard the parents’ primary rights. You will need to provide evidence to show that you can provide for the child's needs and that guardianship is the best option for them. The court process can be complex, so it's a good idea to consult with an attorney who has experience with guardianship cases.

Types of guardianships

There are two types of guardianships in New York: non-permanent and permanent.

1. Non-permanent guardianships are intended to be temporary and can be terminated at any time.  They do not require a court order. 
2. Permanent guardianships are intended to be permanent and can only be terminated under certain circumstances, such as the child reaching adulthood or the guardian being unable to care for the child.

How to apply for guardianship

To get guardianship of a child, you can:

1. Have the parent sign a form called “Designation of Person in Parental Relationship”
2. Or file a petition in Family Court

Designating of Person in Parental Relationship

The "Designation of Person in Parental Relationship" form, also known as a DOPR form, is a legal document that allows a parent or legal guardian to grant temporary care and custody of their child to another person without going to court.

To complete the DOPR form, the parent or legal guardian must fill out the required information, including the names and contact information of the parties involved, the reason for the designation, and the period of time for which the designation is in effect. The parent or legal guardian must also sign the form in the presence of a notary public or authorized representative.

Once the DOPR form is completed and signed, it gives the designated person the authority to make decisions regarding the child's care and welfare, such as enrolling the child in school, obtaining medical treatment, and consenting to participation in extracurricular activities. The designated person may also have physical custody of the child during the designated period.

It is important to note that the DOPR form does not terminate the parent or legal guardian's parental rights. Instead, it allows another person to temporarily assume parental responsibilities while the parent is unable to do so.

In New York, the DOPR form is recognized by law and can be enforced by a court if necessary.

Filing a Petition in Family Court

If a parent is unable or unwilling to care for their child on a more permanent basis, a guardianship petition may be necessary. 

To start the guardianship process, you need to file a petition in the family court in the county where the child lives. You can go to the court in person to ask for the form or contact the court by phone and request that they send you a copy of the petition by mail or email. Find the family court you need using NYCourt.gov’s Locator tool.

The petition should include your name, the child's name, and the reasons why you are seeking guardianship, such as information about your relationship with the child and your ability to care for them. You will also need to provide information about the child's parents, if known.

Once the petition is filed, the court will give you the following documents:

1. A confirmation that the petition was received, along with a confirmation number
2. A docket number
3. A summons (a summons is a legal form that states the date and time of your court appearance)

There are several things you need to do after receiving these documents:

• Contact the court to schedule background checks for you and any other adults living in your household. You will need your docket number to schedule this appointment.
• You will also need to serve a copy of the summons and the petition to all interested parties in this case. Service means delivering legal papers to all the people who are part of a case. This includes the child's parents, if known, and anyone else who has legal custody or visitation rights with the child. For more information on how to properly serve someone, visit NYCourts.gov.
• Once you have served all the interested parties, the process server needs to fill out and submit an Affidavit of Service. To obtain a blank Affidavit of Service, contact the Family Court where the summons and petition were filed. You must submit the completed Affidavit of Service before the next court date.

After the petition has been filed and notice has been served, you will need to appear in family court. If the parents do not agree to let you be the guardian, a hearing will be scheduled and you will need to present evidence as to why you should be granted guardianship. This could include documents such as background checks, financial statements, and references from people who can attest to your ability to care for the child.

At the hearing, the court will consider the information provided. The court may also appoint a lawyer for the child to represent their interests.

If the court decides that there are extraordinary circumstances and that guardianship is in the best interests of the child, they will issue an order granting you guardianship. The order will specify the duration of the guardianship, which can be temporary or permanent depending on the circumstances.

For help and more information

If you need help with a guardianship matter, you can contact a family law attorney or legal services organization. The New York State Office of Children and Family Services and New York State Kinship Navigator also provide information and resources for kinship caregivers and those seeking guardianship of a child.