PART TWO: DESIGNATION OF TEMPORARY OR STANDBY CUSTODIAN — MINN. STAT. §257B
1. What is a standby custodian?
A standby custodian is a person designated by a parent or legal custodian of a child (the “designator”) to have custody of and be responsible for the child when he or she no longer can care for the child. A designation of a standby custodian can be either temporary for a specific period of time not to exceed 24 months, or it can take effect upon the occurrence of a triggering event, such as the death or incapacity of the designator. A standby custodian will become the permanent legal custodian after the parent or legal custodian’s death, if the designation is approved by the court.
Designation of a person as a standby custodian under Minn. Stat. 257B makes him or her a child’s guardian pursuant to Minn. Stat. 524.5-201.
2. How can a designation of a standby custodian help caregivers?
It can help in different ways. First, it may help someone become a kinship caregiver. For instance, if a parent has breast cancer or a debilitating terminal illness, arrangements need to be made for the mother’s children upon her incapacity or death. By designating the grandmother as the standby custodian, and having that designation approved by the court, the mother can be assured her children will be with the grandmother when she is hospitalized and if she dies.
Second, if a kinship caregiver has legal custody of a child, the kinship caregiver may want to make plans to assure that the child will be safe in the event something happens to her. If she worries that upon her death, custody of the child will go back to a parent who is incapable of taking care of the child (that’s why she has the child in her custody in the first place), she can designate another custodian and get that designation approved prior to her incapacity or death.
Third, temporary designation is a good planning tool for parents or legal custodians who are unable to care for their children for a specific period of time. For instance, a parent may need to go overseas for a year for a job, enlist in the armed services, go on active duty, or enter a year- long treatment program. In such circumstances, the parent or legal custodian can appoint a temporary custodian for a period of up to 24 months.
In these examples, the designation provides parents and legal custodians with the security their children will be cared for in the event they can no longer provide for them. It also provides the caregivers – those designated – with the legal authority to carry out the designator’s wishes.
3. Who can designate a standby or temporary custodian?
A parent or other individual with an order of legal custody may designate a standby or temporary custodian.
4. How does a parent or legal custodian designate a temporary or standby custodian?
The designation must be in writing and identify the:
- Other parent;
- Standby or temporary custodian; and
- Triggering event or events upon which the standby or temporary custodian takes over the responsibilities of legal and physical custodian of the child. It must also include:
- The signed consent of the standby or temporary custodian; and
- The signed consent of the other parent or a statement why the other parent’s consent is not required.The designation must be signed by the designator in the presence of two witnesses. A designation is valid upon the signing of the document by all necessary parties.
5. Does the other parent have to consent to the designation?
If the child has another parent whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to carry out the daily custodial care and make decisions concerning the child, a standby custodian may be designated only if the other parent consents, or the court approves the designation after a hearing. MINN. STAT. § 257B .03.
If the other parent does not consent but the custodial parent or legal custodian believes that parent is unable or unwilling to carry out the daily custodian care of the child, a hearing will be necessary before the designation is approved by the court.
6. When does a standby or temporary custodian’s responsibility to the child begin?
A standby or temporary custodian assumes responsibility for the child upon the occurrence of a “triggering event.” A triggering event is usually the death or incapacity or debilitation of the designator. The determination of debilitation or incapacity must be made by an attending physician. A triggering event can also be any event specified by the parent or legal custodian, such as notification of active duty status with the military or hospitalization. If the designation has been approved by the court, the appointment is effective until the designator resumes parental responsibilities, which may be never if the designator dies. If the designation has not been approved by the court, the appointment is effective for 60 days after the triggering event and the custodian must take action to make the designation effective for as long as the designator wanted it to last.
7. How is a delegation of standby or temporary custodian approved?
First, the petition must be filed with the court. A petition for approval of a designation may be made at any time by filing a copy of the designation with the court. If the triggering event has not yet occurred, or if the filing is for the purpose of confirmation of a temporary custodian, only the designator may file the petition for approval.
If the triggering event has occurred, the standby custodian may file the petition and it must contain either a determination of the designator’s incapacity; a determination of the designator’s debilitation and the designator’s signed and dated consent; or a copy of the death certificate.
The designation will be approved without a hearing if the designator is the only parent alive, if the parental rights of the other parent have been terminated, or if both parents consent to the designation.
If a hearing is necessary, the court will set a date and time for the hearing. The person who files the petition must serve any person named in the designation and any other current caregiver of the child with a copy of the petition and designation and notice of any hearing within ten days of the filing of the petition.
The court will then hold a hearing on the petition for approval or confirmation. The court will approve the designation if it is in the best interests of the child. The court will presume that the designated person is capable of serving as custodian or co-custodian. If the designator is the sole surviving parent, the parental rights of the other parent have been terminated, or both parents consent to the designation, the court will presume that entry of an order confirming the designation is in the best interests of the children.
8. When must a designator seek approval by the court?
It depends upon the circumstances of each case. The designator can file the designation with the court either before or after the triggering event. The proposed custodian can file only after the occurrence of the triggering event. Be aware that the designation is only valid for 60 days after the occurrence of the triggering event, unless it has been approved by the court. If the standby or temporary custodian does not file for approval within 60 days, the standby or temporary custodian loses all authority to act as custodian or co-custodian.
If the designator anticipates death or debilitation in the near future, it is wise to get the designation approved immediately. That way, the proposed custodian automatically has authority to act as custodian when the triggering event occurs. If the designator dies, the custodian will be appointed guardian in probate court without having to file a separate petition. If the designator anticipates family or friends will disagree with the choice of standby custodian and will try to get custody of the child after the triggering event despite the designator’s wishes he or she should seek court approval immediately. That way, the hearing about the custody of the child will take place while the designator is still alive and able to participate.
9. What happens after the designation has been approved by the court? Do the parents lose any rights? MINN. STAT. § 257B .06
Once the petition has been approved, the standby or temporary custodian’s authority begins automatically upon the occurrence of the triggering event. Parents do not lose their rights by designating a standby or temporary custodian. Parents may retain co-parenting responsibilities by appointing another person to act with them as co-custodians for the times they are debilitated.
10. Can the designation be revoked?
Yes. The method of revocation depends on whether or not the designation has been approved by the court. Prior to the filing of a petition for approval, a designator may revoke the appointment of a standby or temporary custodian by destroying the designation and notifying the standby or temporary custodian. After it has been filed, the designator must revoke it in writing, file the revocation with the court, and notify the standby or temporary custodian in writing of the revocation.
11. What is the difference between a standby custodian designation and a Delegation of Powers?
A Delegation of Powers is valid from the time it is signed for a period of six months. A temporary custodian’s responsibilities may be for up to 24 months and a standby custodian’s responsibilities begin only upon the occurrence of a triggering event. Further, a Delegation of
Powers ceases with the parent’s death. A standby custodian designation is valid for 60 days after a triggering event, and if approved by the court, can be permanent, even after death. Finally, while both may be revoked, a Delegation of Powers may be revoked at any time, but once the designation of a temporary or standby custodian is approved by the court, it can be revoked only in a written document filed with the court.