Guardianship of a Child: Surrogate Court

To start a guardianship of a child case in Surrogate Court, you must file a petition in the Surrogate 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. Any person 18 years old or older can file a petition to become a guardian.

In Surrogate Court, the petitioner is seeking for the judge to appoint a guardian for the child’s “person” or "property," or both.

A guardian appointed for the child’s person will be given the legal authority to make decisions involving the child’s welfare such as: healthcare, living arrangements, schooling, benefits, etc.

A guardian appointed for the child’s property will be given the legal authority to safe-guard the money, property or assets that belong to the child. A guardian of a child’s property does not have absolute authority to manage a child’s assets. There are restrictions. For example, some courts will jointly hold the assets with the guardian or impose a bond to protect the child’s assets. Also, a guardian cannot take out money without court approval.

A guardian appointed to care for the child’s person and property will be given the legal authority to make decisions involving the child’s welfare and safeguard the child’s assets.

Petition and Other Legal Forms
Before you file the petition, you will also have to complete or collect the legal forms listed below. These forms will need to be filed together, with the petition, to start a case.

• Combined Oath and Designation. This is a legal form that must be completed by the petitioner. By signing this form, the petitioner is stating that they accept responsibility for what is stated in the petition.
• Joinder and Statement of Preference of Infant 14 Years and Over. This legal form must be completed if the child is 14 years old or over. It gives the child the chance to state a preference for whom they would like their appointed guardian to be.
• Waiver of Process, Renunciation and Consent to Renunciation, Letters of Guardianship. This is a legal form that should be completed by every interested party who does not object to the proposed guardian being appointed. An interested party is a person who has a legal right to object to the guardianship. For example: a second parent, a sibling, or a grandparent.

Note: If an interested party does not object to what the petitioner is asking, they must complete a waiver of process, to confirm that they do not object. If they do object to the petition or do not complete the waiver, they must be listed on the citation (see below).

• Affidavit of Proposed Guardian of the Person. This is a legal form that must be completed by the proposed guardian. The proposed guardian can be the petitioner or someone else. In this legal form the proposed guardian states that they:
  
  
  • are competent and age 18 or over
  • know the child
  • have no impairments or addictions
  • have not been convicted of a crime
  • are able to take care of the child, and
  • believe that it would be in the child’s best interest for the judge to appoint them as guardian

• Affidavit of Parent. If the child’s parent is not the petitioner, the petitioner must ask the parent to complete this legal form. By completing this form, the parent states that they believe it would be in the best interest of the child if the judge appoints the proposed guardian.

To obtain the legal forms mentioned above, you can do one of the following:

• visit the Surrogate Court’s Clerk’s Office located in the county where the child is present. The Court Locator tool on this page can provide you with the location and phone number for the appropriate Surrogate Court.
• call the appropriate Surrogate Court’s Clerk’s Office and request that they email or mail you hard copies of the forms needed to file a petition, or
• download the forms

Help
For help completing these forms, you may be able to speak with a Court Help Center or Guardianship Department employee, either in person or virtually. To find out if either one of these options is available to you, visit Court Help Centers and Community Organizations and click on the county where the child is residing.

Filing
Once you have completed and collected the petition and the other legal forms listed above, you will need to file them in court. This will start the case. You can either file in person or electronically. When you file, you will be asked to pay a filing fee unless you qualify for a fee waiver.

If you prefer to file in person:

• call the appropriate Surrogate Court beforehand and find out if there are any COVID-19 restrictions in place that may affect in-person filing.

If you prefer to file electronically:

• 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 do so.

Communication with the Court
After the petitioner files the legal papers above, the following may happen:

1. The petitioner may have to complete a citation.
   
   A citation is a legal form that informs all interested parties that the petitioner has filed a guardianship case in Surrogate Court. If all interested parties sign the waiver and renunciation, there is no need for a citation. If any of the interested parties object to the petition or do not object but fail to sign the waiver and renunciation form, then the petitioner should complete the citation.


2. The petitioner must serve the citation on all interested parties.
   
   Service means delivering legal papers to all the people who are part of a case. Service is both important and required because it tells the parties what is happening in a case and gives them a chance to participate in the court process too.
   
   Service can take different forms depending on where someone lives. If in New York, service has to be made by physically handing someone the citation ten days before the court date. If the interested person lives outside New York, but somewhere in the United States, then service can be made by mailing the citation. For more information on how to serve a person, see How Legal Papers are Delivered.

Note: Covid restrictions may have changed the way service is conducted. Contact your specific Surrogate Court to ask about new or different service requirements.



3. The court will review the application and notify the petitioner if any documents or information are missing. If there are any questions or concerns, the court may contact the petitioner.
4. The petitioner will receive confirmation that the court received the petition, along with a file number. The petitioner should save this number. They will be asked for it when they call the court regarding a case.

Hearing
A Surrogate Court judge may or may not hold a hearing. In general, Surrogate Court will not typically hold a hearing when a petitioner is only seeking guardianship of a child’s property. When hearings do take place, they are closed to the public. During a hearing, a judge will ask questions, listen to testimony, and review evidence to help them decide the best interest of the child.

Post-Filing
Once the judge decides whether to appoint a guardian for a child, the court will commonly send the petitioner a written decision by mail or email.

If the judge decides that a guardian is needed, they will use a court order called “letters of guardianship” to officially appoint someone to be the child’s guardian. The “letters of guardianship” specify what the guardian can do as well as the duration of the guardianship.

A guardian who has guardianship of the person and the property or property only will safeguard the child’s money and/or assets until the child turns 18 years old. Commonly, funds are jointly held by the court and the guardian and no money can be taken out without a court order. Some courts will require the guardian to obtain a bond to protect the child’s interest. Finally, if property is involved, the appointed guardian must comply with specific requirements, including submitting annual paperwork to the court so the court can make sure the child’s funds are safeguarded. The court may also schedule dates to review the child’s case and confirm that guardians have filed required paperwork. By taking these steps, the court is able to protect the child’s assets.