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Protecting the bond between a father and a child is a worthy pursuit. According to the US Department of Health and Human Services, children who grow up fatherless are at a greater risk of engaging in alcohol and drug abuse. The same kids are also at a higher risk of dropping out of school. A child without a present father has little chance of succeeding in life and becoming a productive member of society. Sadly, divorce introduces a new dynamic to the family unit. In most cases, more privileges are given to the mother, and the father is left fighting for his rights. If a divorce has put you in the back seat of your children’s lives, then you need to fight for your rights. The best way to do this is to arm yourself with a father’s right or family lawyer.
What is Guardianship?
The term Guardianship is used to describe a legal arrangement where a court grants a person the legal right to make decisions for another individual who is unable to make decisions for themselves. This individual could be a child, an incapacitated adult or a person who is developmentally disabled.
In the state of New York, guardianship cases are handled by the Family Court, Supreme Court or Surrogate’s Court, depending on the type of guardianship being sought and the person over whom guardianship is requested.
In a guardianship, one individual is given the legal right to make a decision for another.
The Guardian. This is the individual who is appointed by the court to have the legal right to make decisions for the other person. Anyone can make an application. To be a guardian, you must be over the age of 18 and a legal resident or citizen of the United States. A person with a criminal record might not be able to serve as a guardian. A Judge will make the final decision of who can be the guardian.
The Ward. This is the person for whom the Guardian makes decisions. A Ward may not have the cognitive or communicative capacity to make sound decisions for themselves or be able to give their informed consent for personal, medical, or financial matters. The Ward can also be referred to as the Guardianee.
The Four Types of Guardianship in Yonkers
In Yonkers, a guardian can have guardianship over different aspects of a ward’s life:
Guardian of the person. A guardian of the person can make life choices for the ward. These choices can include health care, education and welfare decisions.
Guardian of the property. A guardian of the property takes care of decisions regarding the ward’s money, investments and savings as directed by a Judge. A guardian of the property is required to file an annual report about the ward’s property.
Guardian of the person and property. This type of guardian has responsibility over both the ward’s life decision and the ward’s property.
Guardian ad litem. A guardian ad litem gets assigned by a Judge to act on behalf of a person during a court case when they are not able to defend their rights or protect their own interests for themselves.
Depending on who the Ward is and how much help that individual needs, a guardianship case is filed in Family Court, Surrogate’s Court, or Supreme Court.
Petitioning for Guardianship of a Child
A guardianship case can be commenced by filing an application called “Petition for Appointment of Guardian” in the county where the child resides. This paperwork can be filed in either Surrogate’s Court or the Family Court. Both the Surrogate’s Court and the Family Court are empowered to appoint a guardian of the person for a child. That said, if a child requires a guardian of the property then the petition must be filed in Surrogate’s Court. The Judge officially appoints someone to be a guardian by way of a court order called “letters of guardianship”. This order will specify the type of guardianship that has been awarded.
Before a legal guardian can be appointed for a child, both parents and any child who is over 14 years of age and is not mentally, physically or developmentally disabled must give their consent. This means that he or she understands what will happen if a legal guardian is appointed for the child. The Court will take the child’s preferences into account when deciding. In some scenarios, the Judge will appoint a guardian even if the parent or child refuses to give permission or they disagree with the guardianship.
Note: A guardian can also be named by the parents or legal guardian of a minor child in a Will. This person will become the legal guardian only after the parent dies before the child turns 18. The Judge at Surrogate’s Court must also approve the person to be a guardian.
The Need for Legal Expertise
Contrary to common belief, child visitation is not an automatic right for any of the parents. The courts deem this as the child’s right. This means that it is upon you to demonstrate to the court how your presence in the child’s life benefits the child. The burden of proof is therefore on you. When the courts make a decision based on paternity rights and visitations, they do this in the best interest of the child. This is why as a father defending his rights, it is in your best interest to seek legal advice and expertise.
The family lawyer will help you prepare a defense to prove to the court that you deserve to be in your child’s life. If the divorce was messy, you can be sure that your ex-partner will try to paint you in a negative light before the courts. You will, therefore, have to deal with the negative accusations and still demonstrate that you are a good father.
Complex Guardianship and Paternity Laws
New York laws concerning fathers rights are complex. For starters, you need to understand the law before you attempt to make a case for yourself. This is why a family law lawyer is your greatest arsenal. These lawyers have vast experience. They have also represented many clients before, and they understand the system. Paternity and guardianship cases are often emotional. It, therefore, becomes easy for you to lose your temper when your rights are threatened. Given the fact that you are too emotionally attached, you need to let a family lawyer handle the case. A temper can jeopardize your case and present you in a negative light.
Tips to Winning Guardianship and Paternity Rights
- Be solution oriented. When all is said and done the courts will be looking for a solution. Instead of focusing on the past, you need to have the present and future in mind. Offer solutions to the judge instead of playing the victim.
- Do not engage in a blame game. Blaming your partner for everything does not help your case much. You need to remain focused on the future and what is at stake. The court will view you as the mature partner if you do not engage in a blame cycle.
- Take parenting classes. There are parenting classes available to fathers to help them cope with a divorce. Enrolling in these classes proves to the court that you are serious about your children and their welfare.