Guardianship of a Child: Family Court
Family Court is the appropriate court to file for guardianship of a child when:
- the child is 20 years old or younger, not married and not in military service
- one or both of the child's parents are unable to care for the child, and
- the child has not inherited or been awarded any assets (for example: property, money)
If the child is entitled to receive money or property, the petition should be filed in Surrogate Court.
A Family Court judge may appoint a legal guardian for a child up to the age of 21. Once the child turns 14, they must consent to the appointment. A court appointed legal guardian has the same power as a parent to make decisions for the child.
In New York, Article 6 of the Family Court Act is the law that controls Family Court guardianship appointments involving children.
Starting a Guardianship for a Child Case in Family Court
To start a guardianship case in Family Court, you must file a petition in the Family Court located in the county where the child resides. A petition is a legal form that allows you to ask the court for something. The person who files a petition is called the petitioner. The person you are seeking guardianship over is called the child. Any person 18 years old or older can file a petition in court to become a guardian.
Petition
You can obtain the petition form by visiting Family Court. If you are unable to visit in person, contact Family Court by phone and request that they send you a copy of the petition by mail or email. The Court Locator tool on this page can provide you with the location and phone number for the appropriate Family Court.
Help
If you have questions about completing the petition, you can contact Family Court or visit Court Help Centers and Community Organizations and click on the county where the child is residing to find out if there is a nearby Help Center. A Help Center court attorney may be able to answer your questions, either in person, virtually, or by email.
Filing
Once you have completed the petition, you will need to file it either in person or electronically.
If you prefer to file in person:
- call the appropriate Family Court beforehand and find out if there are any COVID-19 restrictions in place that may affect in-person filing.
- first check the e-filing County List to confirm that this option is available to you. If the court or case type you wish to file in does not appear, contact the E-Filing Resource Center. If electronic filing is an option, use the EDDS system to file.
If you prefer to file electronically:
What Happens After the Guardianship Case is Filed
Communication with the Court
After you file the petition, you will receive the following from the court:
- a confirmation that the petition was received, along with a confirmation number
- a docket number
- a summons (a summons is a legal form that states the date and time of your court appearance)
When you receive the docket number, contact the court* to make an appointment for yourself and all adult household members to undergo a background check.
- *Inside NYC:
contact the Family Court Help Center for the specific borough where you filed your petition - *Outside NYC:
contact the Family Court Clerk’s Office for the specific county where you filed your petition
Service
The person filing the petition must:
- make sure that all respondents and necessary parties receive a copy of the summons and the petition in a manner required by law. This is called service.
- show the court proof that the respondent(s) and necessary parties were served with the summons and petition. You can show this proof by submitting 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. You can submit this document:
- electronically using the EDDS system, or
- if you do not have access to a computer and scanner, or filing electronically is not an available option, contact Family Court to determine how best to return the form
In Family Court, a respondent is also sometimes referred to as a necessary party. A respondent or necessary party is a person that may have a legal right to agree to the guardianship or not.
Service means delivering legal papers to all the people who are part of a case. Service is both important and required because it notifies the respondents and necessary parties what is happening in a case. This gives them a chance to participate in the court process too. For information on how to serve a person, see How Legal Papers are Delivered.
Hearing
The Family Court judge will hold a hearing to decide whether to appoint a guardian. The judge will expect the petitioner to present evidence showing why they think the child needs a guardian. The following will also happen:
- Any necessary parties or respondents in the case will be given the chance to present their evidence and share their opinions about whether a guardian is needed
- The judge will assign a lawyer to speak with the child to get a sense of the child's wishes and needs
- The judge will ask questions, listen to testimony and legal arguments, and review evidence
The judge will consider all the testimony and evidence presented to make a decision in the child’s best interest.
After the Hearing
At the end of the hearing, the judge will either state their decision or will issue a written decision at a later date. If the judge decides that the child needs a guardian, they will complete a court order called “Order of Guardianship.” An “Order of Guardianship” is a legal form used to officially appoint someone as the child’s guardian and allows the guardian to make medical, schooling, housing, religious or other decisions, as specified in the Order.
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