2018 – S.6217-A / A.7899-A

2018 – S.6217-A / A.7899-A

Position Statement -2018

Standby Guardians for Administrative Separation

S.6217-A, Savino / A.7899-A, Rozic 


The Women’s Bar Association of the State of New York (“WBASNY”) supports S.6217-A, Savino / A.7899-A, Rozic) which would amend Surrogate’s Court Procedure Act (hereinafter “SCPA”) § 1726, in relation to the appointment of a standby guardian due to administrative separation, including separation due to federal immigration matters. This amendment would benefit immigrant families by permitting uninterrupted care for minor children in the event of unexpected and traumatic separation due to arrest, detention, incarceration, removal and/or deportation, in connection with a federal immigration matter.

As it is currently written, SCPA § 1726 only allows a parent to designate a standby guardian for their child in the event of incapacity, death, debilitation, or upon consent in conjunction with one of these three events. These categories, while broad, do not encompass standby guardianship in the event of separation due to immigration matters, meaning immigrant families are left to attempt to pigeonhole their petitions for guardianship through one of these avenues. This often is not possible.

In the absence of alternatives, many immigrant families have turned to appointment of permanent legal guardians for their children. Because of this, parents and/or legal guardians are forced to consent to permanently giving up care, custody, and control of their children in order to ensure their children will receive uninterrupted support in the event of a federal immigration separation. Permitting standby guardians to be appointed in the event of administrative separation protects immigrant families by providing an opportunity for parents to retain their parental rights up until the moment of separation and an opportunity for families to care for their children in the event of separation due to federal immigration matters. Appointment of a standby guardian permits automatic transfer of responsibility for the children upon the arrest, detention, removal or deportation of the parent to the named guardian without the aforementioned disadvantages associated with permanent guardianship proceedings. Such a change is vital to New York’s immigrant families due to the present tumultuous landscape of immigration.

As currently written, standby guardianship is unavailable for administrative separation, meaning that children who are citizens of the United States who lose their parent(s) as a result of immigration enforcement often end up in foster care at an enormous cost to the state. Extending standby guardianships in this way will divert children from foster care and into the care of family members, kin, or close friends that they know and trust. By amending SCPA § 1726 to permit this extension, immigrant families are given the tools to adequately plan for a transition of care which is far more beneficial to the children.

In light of the above, and due to the current immigration landscape, SCPA §1726 must be amended to ensure New York State’s immigrant families are able to adequately care for their children in the event of administrative separation. Without providing an option for appointment of a standby guardian in the event of administrative separation, the current version of SCPA § 1726 acts as a barrier to protecting this vulnerable population. For all of these reasons, WBASNY supports S.6217-A, Savino / A.7899-A, Rozic). As an organization comprised of 4,300 attorneys and judges across the state in private practice, government, academia and the courts dedicated to the advancement of women in law and society we respectfully urge the passage of this bill and enactment into law.

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