Allows parents or legal custodians separated from their children because of immigration matters to appoint standby guardians.

A1371

ASSEMBLY, No. 1371

STATE OF NEW JERSEY

222nd LEGISLATURE

�

PRE-FILED FOR INTRODUCTION IN THE 2026 SESSION

Sponsored by:

Assemblywoman ELLEN J. PARK

District 37 (Bergen)

Assemblywoman CARMEN THERESA MORALES

District 34 (Essex)

Assemblywoman SHAMA A. HAIDER

District 37 (Bergen)

Co-Sponsored by:

Assemblywoman Swain, Assemblyman Tully, Assemblywoman
Speight and Assemblyman Sampson

SYNOPSIS

���� Allows parents or legal custodians separated from
their children because of immigration matters to appoint standby guardians.

CURRENT VERSION OF TEXT

���� Introduced Pending Technical Review by Legislative
Counsel.

��

An Act
concerning standby guardianship and amending P.L.1995, c.76.

����
Be It
Enacted
by the Senate and General Assembly of
the State of New Jersey:

���� 1.��� Section 2 of P.L.1995,
c.76 (C.3B-12-68) is amended to read as follows:

���� 2.��� The Legislature finds
and declares that there is an imperative need to create an expeditious manner
of establishing a guardianship known as a standby guardianship, in order to
enable a custodial parent or legal custodian suffering from a progressive chronic
condition
,
or a fatal illness
, or upon an administrative separation

to make plans for the permanent future care or the interim care of a child
without terminating parental or legal rights.� The Legislature further finds
that current law does not adequately address the needs of custodial parents or
legal custodians who are suffering from a progressive chronic condition
,

or a fatal illness
, or who are or will be subject to an administrative
separation
and who desire to make plans for the future care of their
children without terminating parental or legal rights.

(cf: P.L.1995, c.76, s.2)

���� 2.��� Section 3 of P.L.1995,
c.76 (C.3B:12-69) is amended to read as follows:

���� 3.��� As used in P.L.1995,
c.76 (C.3B:12-67 et seq.):

����
"Administrative
separation" means the separation of a parent or legal custodian from the
parent�s or legal custodian�s child as a result of a federal immigration
matter, including, but not limited to, arrest, detention, incarceration, or
removal, or the receipt of official communication by federal, State, or local
authorities responsible for immigration enforcement that gives reasonable
notice that the care and supervision of the parent�s or legal custodian�s child
will be interrupted or cannot be provided as the result of the parent�s or
legal custodian�s impending arrest, detention, incarceration, or removal.

���� "Appointed standby
guardian" means a person appointed pursuant to section 6 of P.L.1995, c.76
(C.3B:12-72) to assume the duties of guardian over the person and, when
applicable, the property of a minor child upon the death or a determination of
incapacity
[
or
]
,
debilitation,

administrative separation,
and with the consent, of the parent or legal
custodian.

���� "Attending
physician" means the physician who has primary responsibility for the
treatment and care for the petitioning parent or legal custodian. When more
than one physician shares this responsibility, or when a physician is acting on
the primary physician's behalf, any such physician may act as the attending
physician pursuant to this act.� When no physician has this responsibility, a
physician who is familiar with the petitioner's medical condition may act as
the attending physician pursuant to P.L.1995, c.76 (C.3B:12-67 et seq.).

���� "Consent" means
written consent signed by the parent or legal custodian in the presence of two
witnesses who shall also sign the document.� The written consent shall
constitute the terms for the commencement of the duties of the standby guardian.

���� "Debilitation" means
a chronic and substantial inability, as a result of a physically debilitating
illness, disease, or injury, to care for one's minor child.

���� "Designated standby
guardian" means a person designated pursuant to section 8 of P.L.1995,
c.76 (C.3B:12-74) to assume temporarily the duties of guardianship over the
person and, when applicable, the property of a minor child upon the death or a
determination of incapacity
[
or
]
,
debilitation,

or administrative separation,
and with the consent, of the parent or
legal custodian.

���� "Designation" means
a written document voluntarily executed by the designator pursuant to P.L.1995,
c.76.

���� "Designator" means a
competent parent or legal custodian of a minor child who makes a designation
pursuant to P.L.1995, c.76.

���� "
Determination of
administrative separation" means a written determination by federal, State,
or local authorities responsible for immigration enforcement regarding the
nature, cause, and extent of a parent�s or legal guardian�s arrest, detention,
incarceration, or removal

���� "Determination of
debilitation" means a written determination made by the attending
physician which contains the physician's opinion to a reasonable degree of
medical certainty regarding the nature, cause, extent, and probable duration of
the parent's or legal custodian's debilitation.

���� "Determination of
incapacity" means a written determination made by the attending physician
which contains the physician's opinion to a reasonable degree of medical
certainty regarding the nature, cause, extent, and probable duration of the parent's
or legal custodian's incapacity.�

���� "Incapacity" means a
chronic and substantial inability, as a result of mental or organic impairment,
to understand the nature and consequences of decisions concerning the care of
one's minor child, and a consequent inability to make these decisions.�

���� "Minor child" means
a child under the age of eighteen years but excludes a child residing in a
placement funded or approved by the Division of Child Protection and Permanency
in the Department of Children and Families pursuant to either a voluntary
placement agreement or court order.�

���� "Triggering event"
means an event stated in the designation, petition or decree which empowers the
standby guardian to assume the duties of the office, which event may be the
death, incapacity
[
or
]
,
debilitation
,
or administrative separation
, with the consent, of the custodial parent or
legal custodian, whichever occurs first.�

(cf: P.L.2012, c.16, s.12)

���� 3.��� Section 6 of P.L.1995,
c.76 (C3B:12-72) is amended to read as follow:

���� 6.��� a.�� Upon petition of
the parent, legal custodian or designated standby guardian, the court may
appoint a standby guardian of a minor child.� The court may also appoint an
alternate standby guardian, if identified by the petitioner, to act if the
appointed standby guardian dies, becomes incapacitated, or otherwise refuses or
is unable to assume the duties of the standby guardian after the death,
incapacity
,
or debilitation of the parent or legal custodian of the
minor child,
or if the parent or legal custodian is subject to an administrative
separation
.�

���� b.��� A petition for the
judicial appointment of a standby guardian of a minor child shall state:�

���� (1)� which triggering event or
events shall cause the authority of the appointed standby guardian to become
effective;�

���� (2)� that there is a
significant risk that the parent or legal custodian will die, become
incapacitated, or become debilitated as a result of a progressive chronic
condition or a fatal illness
, or that the parent or legal custodian is or
will be subject to an administrative separation
; however, a petitioner
shall not be required to submit medical documentation of the parent's or legal
custodian's terminal status by his attending physician
, or submit
documentation of an impending administrative separation
; and

���� (3)� the name, address, and
qualifications of the proposed standby guardian.�

���� c.��� A parent or legal
custodian petitioning the court pursuant to this section shall not be required
to appear in court if unable to appear, except upon motion of the court or by
any party and for good cause shown.�

���� d.��� The court shall appoint
the standby guardian if the court finds that there is a significant risk that
the parent or legal custodian will die, become incapacitated, or become
debilitated as a result of a progressive chronic condition or a fatal illness,
or
that the parent or legal custodian is or will be subject to an administrative
separation,
and that the interests of the minor child would be promoted by
the appointment of the standby guardian.�

���� e.��� The decree appointing
the standby guardian shall specify the triggering event which shall activate
the authority of the standby guardian.�

���� f.���� Upon petition for the
appointment of a standby guardian by a person as specified in subsection a. of
this section, notice shall be served on the minor child's parent or legal
custodian, or the designated standby guardian, as appropriate, within 30 days of
the filing.� The court shall give preference to maintaining custody with either
the parent or legal custodian, or the designated standby guardian, during the
time that the petition is pending. Nothing in this section shall be construed
to deprive any parent of parental rights.� If the petition alleges that after
diligent search, the parent or legal custodian cannot be found, the parent or
legal custodian shall be served by notice delivered pursuant to New Jersey
court rules.� No notice is necessary to a parent who is deceased or whose
parental rights have been previously terminated by court order or consent.

(cf: P.L.1995, c.76, s.6)

���� 4.��� Section 7 of P.L.1995,
c.76 (C.3B:12-73) is amended to read as follows:

���� 7.��� a.���� Upon the
occurrence of a triggering event set forth in a decree appointing a standby
guardian, the standby guardian shall be empowered to assume the duties of his
office immediately.�

���� b.��� If the triggering event
is the incapacity or debilitation of the parent or legal custodian, the
attending physician shall provide a copy of his determination to the appointed
standby guardian if the guardian's identity is known to the attending physician.�

If the triggering event is an administrative separation, the parent�s or
legal custodian�s attorney or legal representative shall provide a copy of a
determination of administrative separation to the appointed standby guardian,
if the guardian�s identity is known to the parent�s or legal custodian�s
attorney.

���� c.��� Within 60 days following
the assumption of guardianship duties, the appointed standby guardian shall
petition the court for confirmation.� The confirmation petition shall include a
determination of incapacity
[
or
]
,

debilitation
, administrative separation,
or a death certificate, as
appropriate.�

���� d.��� The court shall confirm
an appointed standby guardian named in accordance with this act and otherwise
qualified to serve as guardian pursuant to N.J.S.3B:12-1 et seq. unless there
is a judicial determination of unfitness with regard to the appointed standby
guardian.�

���� e.��� A standby guardian
appointed pursuant to section 6 of this act may decline appointment at any time
before the assumption of his duties by filing a written statement to that
effect with the court, with notice to be provided to the petitioner and to the
minor child if the latter is 14 years of age or older.�

���� f.���� Commencement of the
duties of the standby guardian shall confer upon the appointed standby guardian
shared authority with the custodial parent or legal custodian of the minor
child, unless the petition states otherwise.�

���� g.��� A parent or legal
custodian may revoke a standby guardianship by executing a written revocation,
filing it with the court where the petition was filed, and promptly notifying
the appointed standby guardian of the revocation.� An unwritten revocation may be
considered by the court if the revocation can be proved by clear and convincing
evidence submitted to the court.�

(cf: P.L.1995, c.76, s.7)

���� 5.��� Section 8 of P.L.1995,
c.76 (C.3B:12-74) is amended to read as follows:

���� 8.��� a.�� When the consent of
a parent or legal custodian for the execution of a power of attorney delegating
another person to exercise the parent's or legal custodian's powers is not
appropriate or is unavailable pursuant to N.J.S.3B:12-39, the other parent or legal
custodian may execute a written statement to designate a standby guardian, as
follows:�

���� (1)� The parent or legal
custodian may choose a standby guardian by means of a written designation that
names the standby guardian in the event of the designator's death, incapacity
[
or
]
,
debilitation
,
or administrative separation
. The written designation shall reasonably
identify the designator, the minor child and the standby guardian.

���� (2)� A written designation
pursuant to this section shall be signed by the designator in the presence of
two witnesses who shall also sign the designation.� Another person may sign the
written designation on the parent's or legal custodian's behalf if the parent
or legal custodian is physically unable to do so,
or the parent or legal
guardian has been arrested, detained, incarcerated, or removed from the State
as a result of an administrative separation,
provided the designation is
signed at the express request of the parent or legal custodian and in the
presence of the parent or legal custodian and two witnesses.�

���� (3)� The designation shall
state the triggering event by which the parent or legal custodian intends the
designated standby guardianship of the minor child to be activated.�

���� (4)� A parent or legal
custodian may designate an alternate standby guardian in the same document, and
by the same manner, as the designation of a standby guardian.�

���� b.��� A designation may, but
need not, be in the following form:

���� ������������ DESIGNATION OF
STANDBY GUARDIAN�

���� I,���� (name of parent or
legal custodian) hereby name (name, home address and telephone number of
standby guardian) as designated standby guardian of (name of child(ren)), my
child(ren).�

���� By this consent and
designation, I am providing that the designated standby guardian's authority
shall take effect if and when the following event or events occur:� (choose as
follows):�

���� (1)� my attending physician
concludes that I am mentally incapacitated, and thus unable to care for my
child(ren); or�

���� (2)� my attending physician
concludes that I am physically debilitated, and thus unable to care for my
child(ren), and I consent in writing before two witnesses to the designated
standby guardian's authority taking effect;
[
or
]
�

���� (3)� upon my death
; or

����
(4)� upon my arrest,
detention, incarceration, or removal from the State as a result of an
administrative separation.

���� In the event that the person
designated above is unable or unwilling to act as guardian to my child(ren), I
hereby name (name, address and telephone number of alternate designated standby
guardian), as alternate designated standby guardian of my child(ren).�

���� I understand that this
designation will expire six months from the date of this designation, and that
the authority of the designated standby guardian, if any, will cease, unless by
that date either I or the designated standby guardian petitions the court for
appointment as standby guardian pursuant to section 6 of P.L.1995, c.76
(C.3B:12-72).�

���� I hereby authorize that the
person designated standby guardian as set forth above shall be provided with a
copy of the attending physician's statement.�

���� In the event that I am
incapacitated
[
or
]
,

debilitated
, or subject to an administrative separation
and a designated
standby guardianship is activated pursuant to this statement, I declare that it
is my intention to retain full parental rights to the extent consistent with my
condition and, further, that I retain the authority to revoke the designated
standby guardianship consistent with my rights herein at any time.

���� Designator's
Signature:���������������������������������

���� Witness'
Signature:�������������������������������������

���� Address:������������������������������������������������

���� Date:���������������������������������������������������

���� Witness'
Signature:�������������������������������������

���� Address:������������������������������������������������

���� Date:���������������������������������������������������

���� c.��� Nothing in this section
shall be construed to involuntarily deprive any parent of parental rights.�

(cf: P.L.1995, c.76, s.8)

���� 6.��� This act shall take
effect immediately.

STATEMENT

���� This bill allows a parent or
legal custodian who has been separated from their child as a result of a
federal immigration matter to appoint a standby guardian.

���� Specifically, the bill amends
P.L.1995, c.76 (C.3B:12-64 et seq.) to allow the parent or legal custodian to
petition the court for the appointment of a standby guardian of a child or to
allow the other parent or legal guardian to designate in writing a standby
guardian, under specific circumstances, if the parent or custodian is subject
to an administrative separation.

���� Currently, a parent or legal
custodian can petition the court for the appointment of a standby guardian, and
the court may appoint the standby guardian, or another parent or custodian may
designate in writing a standby guardian, if the triggering event requiring the
appointment is death, incapacity, or debilitation and there is significant risk
that the parent or custodian will die, become incapacitated, or become
debilitated as a result of a progressive chronic condition or a fatal illness.

���� As used in the bill,
�administrative separation� means the separation of a parent or legal custodian
from the parent�s or legal custodian�s child as a result of a federal
immigration matter, including, but not limited to, arrest, detention,
incarceration, or removal, or receipt of official communication by federal, State,
or local authorities responsible for immigration enforcement which gives
reasonable notice that the care and supervision of the parent�s or legal
custodian�s child will be interrupted or cannot be provided as the result of
the parent�s or custodian�s impending arrest, detention, incarceration, or removal.

���� Under the provisions of the
bill, the petition would state that the triggering event, an impending
administrative separation, occurred to require the appointment of a standby
guardian and that there is significant risk that the parent or legal custodian will
be the subject of such separation.� However, the parent or custodian would not
be required to submit documentation of an impending administrative separation.�
If the court finds that that there is a significant risk that the parent or
legal guardian will be subject to an administrative separation, a standby
guardian would be appointed.

���� Current law does not recognize
an administrative separation as a triggering event for the appointment of a
standby guardian and does not allow a parent or legal custodian to petition the
court for the appointment of a standby guardian, and the court to appoint such
a guardian, if there is significant risk that the parent or legal custodian
will be the subject to an administrative separation.

���� As required under current law
for standby guardians who are appointed due to� death, incapacity, or
debilitation, the bill stipulates that: if the triggering event that causes the
appointment of a standby guardian is an administrative separation, the parent�s
or legal custodian�s attorney or legal representative would provide a copy of a
determination of administrative separation to the appointed standby guardian,
if the guardian�s identity is known to the parent�s or custodian�s attorney or
legal representative; and the appointed standby guardian is required to
petition the court, including a determination of administrative separation, within
60 days of assuming guardianship duties for confirmation of the appointment.

���� As used in the bill,
�determination of administrative separation� means a written determination by
federal, state, or local authorities responsible for immigration enforcement
regarding the nature, cause, and extent of the parent�s or legal guardian�s
arrest, detention, incarceration, or removal.

���� As mandated by the current law
for standby guardians who are appointed due to death, incapacity, or
debilitation, the bill also stipulates that if the consent of a child�s parent
or legal custodian for the execution of a power of attorney delegating another
person to exercise the parent's or legal custodian's powers is not appropriate
or is unavailable pursuant to N.J.S.3B:12-39, the other parent or legal
custodian may execute a written statement to designate a standby guardian in
the event of the designator's administrative separation.

���� The written designation would
identify the designator, the minor child, and the standby guardian.� If the
parent or legal custodian has been arrested, detained, incarcerated, or removed
from the State as a result of an administrative separation, another person may
sign the written designation on the parent's or legal custodian's behalf.