Articles Posted in Guardianship Law

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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.

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Custody cases are not always between parents. A substantial number of cases heard by Family Court in New York involve other relatives, including grandparents. In the Matter of Chariss C. v Jose G., the court was asked to decide whether to grant the petitioning grandmother guardianship over her two grandchildren or grant the children’s mother sole custody and guardianship.

Background

While residing at the petitioner grandmother’s house, the mother, Respondent Courtney C. gave birth to two Children. The children were born in 2010 and 2013. The father, Respondent Jose G., was rarely involved in the lives of the children and did not support them. The grandmother and her husband primarily financially provided for the children and provided for their educational needs as well as food and housing.

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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.

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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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On or about October 8, 2004, petitioner commenced a proceeding pursuant to Article 81 of the Mental Hygiene Law for the appointment of a Guardian for his father, respondent an Alleged Incapacitated Person. The Petition alleged that as the result of a stroke occurring during a routine cardiac catherization, respondent (age 51) was currently residing in PENINSULA HOSPITAL CENTER (Head Trauma Unit), Far Rockaway, New York, in a “minimally responsive condition” and that he required assistance with all activities of daily living. Following a hearing conducted herein, the Court appointed the Petitioner, and his mother as the Co-Guardians for the Personal Needs and Property Management of respondent, an Incapacitated Person, by Order and Judgment dated February 7, 2005.

During the ensuing years, respondent was transferred to PARK TERRACE REHABILITATION AND NURSING CENTER, Corona, New York for further rehabilitation, and ultimately discharged to his residence in Great Neck, New York. At home, the Co-Guardians utilized the assistance of MAXIM HEALTH CARE SERVICES, INC. to provide full-time home health care for him.

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The simple description of the cause of action in this endorsed complaint, “failure to provide proper services,” belies the difficult legal and human issues that are presented by this claim by a daughter, on behalf of her incompetent mother, against the brother and wife who took the mother in, and against the agency that provided home care services.

Plaintiff DJ is the guardian of the person and property of SN, who is now 75 years old and resides in River Manor Care Home. As described in the order appointing Ms. DJ to serve as her mother’s guardian, mother SN “suffered a stroke that has rendered her aphasic she has partial paralysis, can no longer swallow. she is nonambulatory her cognition is nonexistent and she suffers from hyperthyroidism and vascular dementia.” From February 1998 until October 2001, mother SN resided with her son, defendant RN, and his wife, defendant JN. During that period, she received home care services from defendant Rockaway Home Attendant Services, Inc., a licensed home care services agency. In October 2001, mother SN was hospitalized for a month, and then transferred to the nursing home.

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This private placement adoption action presents a number of intertwined legal issues that highlight the shortcomings of the private placement adoption statutes in New York State. The infant who is the subject of the case has now been in the home of the petitioners since February 21, 1998 without the benefit of a valid adoption consent from the parents or a currently valid preadoption certification order.

The adoption agency that originally accepted custody of the child is no longer supervising this placement because it was not licensed in the State where the child was born. Additionally, the fees charged by the principals involved may not be entirely allowable under New York State law.

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It has been observed by our court that “the natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right” and that “the best interests of the child would be furthered by the child being nurtured and guided by both of the natural parents”. Indeed, a custodial parent’s interference with the relationship between a child and a noncustodial parent has been said to be “an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent”. Such interference with the relationship between a child and a noncustodial parent can take many forms, the obvious being the outright denial of visitation by making the child physically unavailable at the appointed time. However, the instant case involves a more subtle and insidious form of interference, a form of interference which, in many respects, has the potential for greater and more permanent damage to the emotional psyche of a young child than other forms of interference; namely, the psychological poisoning of a young person’s mind to turn him or her away from the noncustodial parent. In this case, if left with their mother, the children would have no relationship with their father given the mother’s constant and consistent single-minded teaching of the children that their father is dangerous. She has demonstrated that she is unable and unwilling to support the father’s visitation; and it was, therefore, an improvident exercise of discretion to deny the father’s petition for a change of custody.

The parties herein were married on August 21, 1982, and had four children together. The father left the marital residence in November 1988, and a divorce action was commenced the following month. Following a trial on the issues of equitable distribution, support, and maintenance held in April 1991, a memorandum decision was issued on June 1, 1992. Although the father had, during the early stages of the divorce action, stipulated to the mother having custody of the children, he moved, by order to show cause dated June 17, 1992, inter alia, for a change of custody to him, with the mother to be given only supervised visitation based upon what he claimed to be the mother’s “bizarre and dangerous behavior” which was “calculated to destroy the children’s relationship with him”.

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