THE FOLLOWING STUDY ARTICLE IS INTENDED FOR BASIC AWARENESS AND NOT FOR LEGAL ADVICE. IF THE READER SEEKS LEGAL ADVICE CONCERNING HIS OR HER PARTICULAR SITUATION, HE OR SHE SHOULD SEEK OUT AN ATTORNEY IN A LAWYER CLIENT RELATIONSHIP.
The “standby guardianship” can be a conflict resolution alternative in an ongoing child custody conflict involving debilitated parents.
As a general rule, the rights of a parent in regard to a child may be terminated when a child has been removed from the care of the parent(s)by the court or under a voluntary agreement with an agency , 12 months or more have elapsed from the date of the removal or placement , and the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child (see 23 Pa.C.S.A. § 2511).
However, as a least restrictive conflict resolution alternative (see 20 Pa.C.S.A. § 5502) concerning both child and parental rights where debilitated parents ( i.e. parents both in an active addiction status) and extended family members are locked in an ongoing and expensive child custody conflict, the debilitated parents could simply designate those extended family members as “standby guardians” of the child by means of a written designation. See 23 Pa.C.S.A § 5611 (a) .
Nothing in the standby guardian designation would deprive the debilitated parents of their legal parental rights or their duty to support their child . See 23 Pa.C.S.A § 5603 and 5613(c) . The debilitated family members can share physical and legal custody of the child with those extended family member standby “coguardians” . See 23 Pa.C.S.A § 5602.
Once the “triggering event” of a licensed physician’s determination that the parents are debilitated to the degree of being unable to make and carry out the day-to-day child-care decisions concerning their child , and once the standby guardian candidates obtain the debilitated parents properly executed written consent ( see 23 Pa.C.S.A 5611(c) ) , those candidates would simply file a petition with the court within sixty days of that triggering event for approval without a hearing of the standby guardianship designation. See 23 Pa.C.S.A 5612 (a)(2)& (e)and per 23 Pa.C.S.A 5613 (b) .
As coguardians , they would have a shared but more primary day to day custody of their child, yet assuring the debilitated parents of a frequent and continuing contact with and physical access to their child . See 23 Pa.C.S.A 5613 (a). The standby coguardians would further assure the debilitated parents’ involvement , to include, to the greatest extent possible, their input concerning decision making on behalf of their child . See 23 Pa.C.S.A 5613 (a).
If and when a licensed physician determines that the debilitated parents have regained the capacity to make and carry out the day-to-day child-care decisions concerning their child ,the authority of the standby guardians as coguardians shall become inactive, and they will return to having no authority as coguardians . See 23 Pa.C.S.A 5613(d).
The standby guardianship can be easily revoked by the debilitated guardians at any time . See 23 Pa.C.S.A § 5614 . However , unfounded revocations by the debilitated parents could well subject them parents to child custody arrangements in the hands of others that are much more restrictive to their parental rights .
The court will not require a bond of the standby guardians for the guardianship of the child’s person . See 23 Pa.C.S.A § 5616.
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Legal References
23 Pa.C.S.A § 5502. Purpose of chapter.
Recognizing that every individual has unique needs and differing abilities, it is the purpose of this chapter to promote the general welfare of all citizens by establishing a system which permits incapacitated persons to participate as fully as possible in all decisions which affect them, which assists these persons in ….., protecting their rights, managing their financial resources and … regaining their abilities to the maximum extent possible and which accomplishes these objectives through the use of the least restrictive alternative…..
23 Pa.C.S.A. § 5602. Definitions.
“Coguardian.” A person who along with a parent shares physical or legal custody, or both, of a child.
23 Pa.C.S.A. § 5603. Scope.
…….Nothing in this chapter shall be construed to deprive any parent, custodial or noncustodial, of legal parental rights. Nothing in this chapter shall be construed to relieve any parent, custodial or noncustodial, of a duty to support a child under the provisions of Chapter 43 (relating to support matters generally).
23 Pa.C.S.A. § 5611. Designation.
(a) General rule.–A custodial parent, a legal custodian or legal guardian may designate a standby guardian by means of a written designation unless the minor has another parent or adoptive parent:
(1) whose parental rights have not been terminated or relinquished;
(2) whose whereabouts are known; and
(3) who is willing and able to make and carry out the day-to-day child-care decisions concerning the minor.
(b) Exception where other parent consents.–Notwithstanding subsection (a), a parent, legal custodian or legal guardian may designate a standby guardian with the consent of the other parent.
(c) Contents.–
(1) A designation of a standby guardianship shall identify the custodial parent, legal custodian or legal guardian making the designation, the minor or minors, any other parent, the standby guardian and the triggering event or events upon which a named standby guardian shall become a coguardian or guardian. …… The designation shall also include the signed consent of the standby guardian and the signed consent of any other parent or an indication why the other parent’s consent is not necessary.
(2) The designation shall be signed by the designating parent, legal custodian or legal guardian in the presence of two witnesses who are 18 years of age or older and not otherwise named in the designation, who shall also sign the designation…..
23 Pa.C.S.A. § 5612. Petition for approval of a designation.
(a) General rule.–A petition for court approval of a designation under this chapter may be made at any time by filing with the court a copy of the designation. If the triggering event has not occurred on or before the time of filing, only the designator may file the petition. If the triggering event has occurred on or before the time of filing, the standby guardian named in the designation may file the petition, and the petition shall also contain one of the following:
(2) A determination of the designator’s debilitation and the designator’s signed and dated consent.
(e) Approval without hearing.–Approval of the designation without a hearing is permitted when …..when all parties consent to entry of the approval order.
23 Pa.C.S.A. § 5613. Authority of standby guardian.
(a) General rule.–The standby guardian shall have authority to act as coguardian or guardian upon the occurrence of the triggering event. The commencement of the standby guardian’s authority to act as coguardian pursuant to a …determination of debilitation and consent …. shall not itself divest the designator of any parental rights but shall confer upon the standby guardian concurrent or shared custody of the child….. A coguardian shall assure frequent and continuing contact with and physical access to the child and shall further assure the involvement of the parent, to include, to the greatest extent possible, in the decision making on behalf of the child.
(b) Effect of filing.–…..If a designation has been made but the petition for approval of the designation has not been filed and a triggering event has occurred, the standby guardian shall have temporary legal authority to act as a coguardian or guardian of the minor without the direction of the court for a period of 60 days. The standby guardian shall within that period file a petition for approval in accordance with section 5612 (relating to petition for approval of a designation). If no petition is filed within the specified 60 days, the standby guardian shall lose all authority to act as coguardian or guardian. If a petition is filed but the court does not act upon it within the 60-day period, the temporary legal authority to act as coguardian or guardian shall continue until the court orders otherwise.
(c) Parental rights.–The commencement of a coguardian’s or guardian’s authority under this subchapter may not itself divest a parent or legal guardian of any parental or guardianship rights.
(d) Restored capacity.–If a licensed physician determines that the designator has regained capacity, the coguardian’s authority which commenced pursuant to the occurrence of a triggering event shall become inactive, and the coguardian shall return to having no authority. Failure of a coguardian to comply with this provision and to immediately return the minor to the designator’s care shall entitle the designator to an emergency hearing in a court of competent jurisdiction.
23 Pa.C.S.A. § 5614. Revocation.
(a) Prepetition.–Prior to a petition being filed under section 5612 (relating to petition for approval of a designation), the designator may revoke a standby guardianship by simple destruction of the designation and notification of the revocation to the standby guardian.
(b) Postpetition.–After a petition has been filed, the designator may revoke a standby guardianship by:
(1) executing a written revocation;
(2) filing the revocation with the court; and
(3) notifying the persons named in the designation of the revocation in writing.
(c) Unwritten revocation.–Regardless of whether a petition has been filed, an unwritten revocation may be considered by the court if it can be proven by clear and convincing evidence.
23 Pa.C.S.A. § 5616. Bond.
In no event shall a standby guardian be required to post bond prior to the occurrence of the triggering event. The court may require a bond if the standby guardian is designated the coguardian or guardian of the estate of a minor but will not require a bond for the coguardianship or guardianship of the person of a minor.
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