The immigration situation in the United States continues to draw public attention, and often, ire. Beyond the heated rhetoric, people who have fled to America from various parts of the world often have to make agonizing choices, particularly where children are involved.
Refugees from war-torn countries such as Ukraine often reside in the United States under various legal umbrellas, some more permanent than others. If such people have children who are born in the United States, those kids are United States citizens, while the parents are not.
What, these parents often think, would happen to our baby if we were taken into ICE custody? Would our child become a ward of the State if we were deported?
Such questions bring immeasurable stress. New York law has contemplated this situation and provides some options that may bring some sense of relief.
The answer, in short, is a standby guardian.
The law in NY allows a parent to name, in advance, the person who should care for their child if the parent later cannot. In 2018 the Legislature amended the law to cover immigration specifically. A standby guardianship can now be set to take effect if a parent is arrested, detained, removed, or deported in connection with an immigration matter, or even if the parent receives official notice from immigration authorities that their care of the child will be interrupted.
There are, in reality, two options.
Under the first, more limited option, a parent signs a written designation naming a standby guardian and an alternate. It is signed in front of two witnesses. No court is involved, and no case is filed. The document sits dormant, sometimes for years, and does nothing until one of the triggering events occurs. If that day comes, the person named steps in immediately. The tradeoff is that this person then has sixty days to go to court and ask a judge to be appointed guardian.
The second, more robust option is to go to court first. A parent petitions now, and a judge appoints the standby guardian in advance, with authority that lies dormant until the triggering event. If the parent is detained, the guardian does not have to start a court case. They already hold a court order, which carries considerably more weight than a private document does. This option takes longer and costs more, but for families facing real and immediate risk, it is often worth it.
Do not wait until trouble arrives.
The attorneys at Ganguly Brothers Misula PLLC can walk you through the options and help you decide what makes sense for your family.