In May of 2018 the Maryland legislature passed emergency legislation which amended and expanded the current standby guardianship law (Md. Code, Estates and Trusts Section 13-901, 13-904 and 13-907) to cover parents who were subject to an adverse immigration action. Previously the standby guardianship law only covered situations where a parent was mentally incapacitated or physically debilitated. The new law allows an undocumented parent who could be detained or deported to privately designate another trusted adult to care for minor children and act as a standby guardian. This law is important because it allows undocumented parents to do family safety planning in order to safeguard the future well-being of their children and to make provisions for their children to be in the care of someone they trust. Otherwise the children are at risk of being placed in the Maryland child welfare and foster care system and the parents risk losing their parental rights.
In order to create the standby guardianship, the parent needs to complete the Parental Designation and Consent to Beginning of Standby Guardianship Form (“the Form“). If directed by the parent in the Form, the standby guardian can care for the physical and mental well-being of the children, enroll them in school, make educational, medical and other decisions, travel with the children domestically or internationally and receive and apply for public benefits for the children, such as Medicaid or food stamps. The Form is posted on the Maryland Courts website at mdcourts.gov/sites/default/files/court-forms/ccgno41.pdf.
The Form is now translated on the Maryland Courts website into Spanish, French, Brazilian Portuguese, Amharic, Russian, Chinese, Korean, Hindi, Arabic, Yoruba, Urdu, Tagalog, Twi, Igbo, and Somali.
Most importantly, the parent does not lose any parental rights by completing the Form and has the power to revoke the standby guardianship at any time. The parent at all times keeps custodial rights.
The parent needs to sign the Form and have the parent’s signature witnessed by 2 adults who are not the standby guardian and have the standby guardian sign the Form. Once the Form is completed, it is kept by the parent and standby guardian in a safe place. The Form only goes into effect if the parent is detained or deported and the standby guardian has the completed form and evidence that the parent has been detained or deported. Once the standby guardianship begins, it continues for 180 days unless revoked by the parent. At the end of the 180 days the standby guardianship automatically terminates. If the parent needs the standby guardian to serve more than 180 days, prior to the end of the 180 days the standby guardian must file a Petition by Standby Guardian (Judicial Appointment) with the Circuit or Orphans Court in the county in which the child is living. The filing of the Petition automatically extends the standby guardianship until the court rules on the Petition. The Petition is also available on the Maryland Court’s website.
If the standby guardian does not file the Petition and the standby guardianship automatically terminates after 180 days, the parent could still be detained and the standby guardian could still in some cases be caring for the children without legal authorization. This could be problematic in the event of a medical emergency, an educational issue arises or travel arrangements need to be made for the child.
If both parents are not signing the Form, the Form requires that the parent give the reasons for the lack of consent. The Form provides the following options:
(a) is mentally or physically unable to give consent;
(b) abandoned the child;
(c) no longer has legal custody of the child;
(d) lives in another county;
(e) parentage unknown;
(f) cannot be located and the following efforts have been make to locate him/her.
The new law specifically provides that if a parent lives outside of the United States, his or her consent is not required for the standby guardianship in the case of an adverse immigration action.
If the standby guardian files a Petition for court appointment, the court will require that notice be sent to all interested parties and a hearing will be held. The Form and the children’s birth certificates must be attached to the Petition to the Court. If the standby guardian has served for more than 3 months the court requires that the standby guardian also provide
(a) a statement from the child’s primary healthcare provider that the child receives appropriate healthcare;
(b) if the child is enrolled in school, a copy of the child’s most recent report card or other progress report; and
(c) a reference to all court records pertaining to the child during that period.
If the court’s ruling appoints the standby guardian the standby guardian can serve until the parent revokes the guardianship or the child reaches 18 years of age, whichever first occurs. See also:Maryland Rules of Procedure, Title 10 Guardians and Other Fiduciaries, Chapter 400 and Maryland State Bar Association Family Law Advocate Article on standby guardianships.
