BILL AS INTRODUCED S.95
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S.95 1
Introduced by Senator Hashim 2
Referred to Committee on 3
Date: 4
Subject: Guardianship; standby guardianship; adverse immigration actions 5
Statement of purpose of bill as introduced: This bill proposes to establish 6
standby guardianships for children whose parents have been subject to adverse 7
immigration actions. 8
An act relating to standby guardianships for children whose parents have 9
been subject to adverse immigration actions 10
It is hereby enacted by the General Assembly of the State of Vermont: 11
Sec. 1. 14 V.S.A. § 2622 is amended to read: 12
§ 2622. DEFINITIONS 13
As used in this article: 14
(1) “Child” means an individual who is under 18 years of age and who 15
is the subject of a petition for guardianship filed pursuant to section 2623 of 16
this title. 17
(2) “Child in need of guardianship” means: 18
(A) A child who the parties consent is in need of adult care because 19
of any one of the following: 20 BILL AS INTRODUCED S.95
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(i) The child’s custodial parent has a serious or terminal illness. 1
(ii) A custodial parent’s physical or mental health prevents the 2
parent from providing proper care and supervision for the child. 3
(iii) The child’s home is no longer habitable as the result of a 4
natural disaster. 5
(iv) A custodial parent of the child is incarcerated. 6
(v) A custodial parent of the child is on active military duty. 7
(vi) A custodial parent of the child is unavailable to care for the 8
child because the parent has been subject to an adverse immigration action. 9
(vii) The parties have articulated and agreed to another reason that 10
guardianship is in the best interests of the child. 11
(B) A child who is: 12
(i) abandoned or abused by the child’s parent; 13
(ii) without proper parental care, subsistence, education, medical, 14
or other care necessary for the child’s well-being; or 15
(iii) without or beyond the control of the child’s parent. 16
(3)(A) “Custodial parent” means a parent who, at the time of the 17
commencement of the guardianship proceeding, has the right and 18
responsibility to provide the routine daily care and control of the child. The 19
rights of the custodial parent may be held solely or shared and may be subject 20
to the court-ordered right of the other parent to have contact with the child. If 21 BILL AS INTRODUCED S.95
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physical parental rights and responsibilities are shared pursuant to court order, 1
both parents shall be considered “custodial parents” for purposes of this 2
subdivision (3). 3
(B) In standby guardianship cases filed pursuant to section 2626a of 4
this title, the following parents shall be considered “custodial parents” for 5
purposes of this subdivision (3): 6
(i) the custodial parent who has sole custody of the child; or 7
(ii) if custodial parenting rights are shared, all the parents who 8
share custody. 9
(4) “Nonconsensual guardianship” means a guardianship with respect to 10
which: 11
(A) a parent is opposed to establishing the guardianship; or 12
(B) a parent seeks to terminate a guardianship that the parent 13
previously agreed to establish. 14
(5) “Noncustodial parent” means a parent who is not a custodial parent 15
at the time of the commencement of the guardianship proceeding. 16
(6) “Parent” means a child’s biological or adoptive parent, including 17
custodial parents; noncustodial parents; parents with legal or physical 18
responsibilities, or both; and parents whose rights have never been adjudicated. 19
(7) “Parent-child contact” means the right of a parent to have visitation 20
with the child by court order. 21 BILL AS INTRODUCED S.95
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(8) “Standby guardianship” means a consensual guardianship agreement 1
between the custodial parent and their chosen guardian that meets the 2
requirements of section 2626a of this title, in which the custodial parent has 3
been subject to an adverse immigration action that has rendered the parent 4
unavailable to care for their child. 5
(9) “Adverse immigration action” means: 6
(A) arrest or apprehension by any local, state, or federal law 7
enforcement officer for an alleged violation of federal immigration law; 8
(B) arrest, detention, or custody by the Department of Homeland 9
Security or a federal, state, or local agency authorized by or acting on behalf of 10
the Department of Homeland Security; 11
(C) departure from the United States under an order of removal, 12
deportation, exclusion, voluntary departure, or expedited removal or a 13
stipulation of voluntary departure; 14
(D) the denial, revocation, or delay of the issuance of a visa or 15
transportation letter by the Department of State; 16
(E) the denial, revocation, or delay of the issuance of a parole 17
document or reentry permit by the Department of Homeland Security; or 18
(F) the denial of admission or entry into the United States by the 19
Department of Homeland Security or other local or state officer acting on 20
behalf of the Department of Homeland Security. 21 BILL AS INTRODUCED S.95
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Sec. 2. 14 V.S.A. § 2623 is amended to read: 1
§ 2623. PETITION FOR GUARDIANSHIP OF MINOR; SERVICE 2
(a) A parent or a person interested in the welfare of a minor may file a 3
petition with the Probate Division of the Superior Court for the appointment of 4
a guardian for a child. The petition shall state: 5
(1) the names and addresses of the parents, the child, and the proposed 6
guardian; 7
(2) the proposed guardian’s relationship to the child; 8
(3) the names of all members of the proposed guardian’s household and 9
each person’s relationship to the proposed guardian and the child; 10
(4) that the child is alleged to be a child in need of guardianship; 11
(5) specific reasons with supporting facts why guardianship is sought; 12
(6) whether the parties agree that the child is in need of guardianship 13
and that the proposed guardian should be appointed as guardian; 14
(7) the child’s current school and grade level; 15
(8) if the proposed guardian intends to change the child’s current school, 16
the name and location of the proposed new school and the estimated date when 17
the child would enroll; 18
(9) the places where the child has lived during the last five years, and 19
the names and present addresses of the persons with whom the child has lived 20
during that period; and 21 BILL AS INTRODUCED S.95
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(10) any prior or current court proceedings, child support matters, or 1
parent-child contact orders involving the child; 2
(11) whether the petition seeks a standby guardianship and the reasons 3
for the request, including the adverse immigration action that the custodial 4
parent is subject to; and 5
(12) whether the petition is an emergency petition filed pursuant to 6
subdivision 2625(f)(1) of this title. 7
(b)(1) A petition for guardianship of a child under this section shall be 8
served on all parties and interested persons as provided by Rule 4 of the 9
Vermont Rules of Probate Procedure. 10
(2)(A) The Probate Division may waive the notice requirements of 11
subdivision (1) of this subsection (b) with respect to a parent if the court finds 12
that: 13
(i) the identity of the parent is unknown; or 14
(ii) the location of the parent is unknown and cannot be 15
determined with reasonable effort; or 16
(iii)(I) the custodial parent is detained as the result of an adverse 17
immigration action; and 18
(II) the guardian and the custodial parent’s attorney are unable 19
to contact the custodial parent after making reasonable efforts. 20 BILL AS INTRODUCED S.95
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(B) After a guardianship for a child is created, the Probate Division 1
shall reopen the proceeding at the request of a parent of the child who did not 2
receive notice of the proceeding as required by this subsection. 3
Sec. 3. 14 V.S.A. § 2625 is amended to read: 4
§ 2625. HEARING; COUNSEL; GUARDIAN AD LITEM 5
(a) The Probate Division shall schedule a hearing upon the filing of the 6
petition and shall provide notice of the hearing to all parties and interested 7
persons who were provided notice under subdivision 2623(c)(1) of this title. 8
(b) The child shall attend the hearing if he or she the child is 14 years of 9
age or older unless the child’s presence is excused by the court for good cause. 10
The child may attend the hearing if he or she the child is less than 14 years of 11
age. 12
(c) The court shall appoint counsel for the child if the child will be called 13
as a witness. In all other cases, the court may appoint counsel for the child. 14
(d)(1) The child may be called as a witness only if the court finds after 15
hearing that: 16
(A) the child’s testimony is necessary to assist the court in 17
determining the issue before it; 18
(B) the probative value of the child’s testimony outweighs the 19
potential detriment to the child; and 20 BILL AS INTRODUCED S.95
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(C) the evidence sought is not reasonably available by any other 1
means. 2
(2) The examination of a child called as a witness may be conducted by 3
the court in chambers in the presence of such other persons as the court may 4
specify and shall be recorded. 5
(e) The court may appoint a guardian ad litem for the child on motion of a 6
party or on the court’s own motion. 7
(f)(1) The court may grant an emergency guardianship petition filed ex 8
parte by the proposed guardian, or by the custodial parent’s attorney in the case 9
of a standby guardianship petition filed pursuant to section 2626a of this title, 10
if the court finds that: 11
(A)(i) both parents are deceased or medically incapacitated; and or 12
(ii) in the case of a standby guardianship petition filed pursuant to 13
section 2626a of this title, the custodial parent has been subject to an adverse 14
immigration action that renders the parent unavailable to care for the child; and 15
(B) the best interests of the child require that a guardian be appointed 16
without delay and before a hearing is held. 17
(2) If the court grants an emergency guardianship petition pursuant to 18
subdivision (1) of this subsection (f), it shall schedule a hearing on the petition 19
as soon as practicable and in no event more than three business days after the 20
petition is filed. 21 BILL AS INTRODUCED S.95
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Sec. 4. 14 V.S.A. § 2626a is added to read: 1
§ 2626a. CONSENSUAL STANDBY GUARDIANSHIP 2
(a)(1) If the petition requests a standby consensual guardianship, the 3
petition shall include or be accompanied by a consent signed by the custodial 4
parent attesting that the custodial parent understands the nature of the standby 5
guardianship and knowingly and voluntarily consents to the standby 6
guardianship. The consent shall provide that the custodial parent’s agreement 7
is contingent upon the parent becoming subject to an adverse immigration 8
action that renders the parent unavailable to care for the child. 9
(2) The consent required by this subsection shall be on a form approved 10
by the Court Administrator. 11
(b)(1) The court shall schedule a hearing on the petition within 14 days. 12
The custodial parent shall be permitted to appear at and participate in the 13
hearing remotely. 14
(2) On or before the date of the hearing, the parties shall file an 15
agreement between the proposed guardian and the custodial parents. The 16
agreement shall provide: 17
(A) that the parties intend to create a standby guardianship that is 18
effective only if the custodial parent has been subject to an adverse 19
immigration action that renders the custodial parent unavailable to care for the 20
child; 21 BILL AS INTRODUCED S.95
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(B) the responsibilities of the guardian; 1
(C) the responsibilities of the parents; 2
(D) the expected duration of the guardianship, if known; 3
(E) parent-child contact and parental involvement in decision 4
making; and 5
(F) that the guardianship shall presumptively terminate if the 6
custodial parent is released from custody and reunited with the child. 7
(3) Any party may notify the court that the guardianship is 8
presumptively terminated pursuant to subdivision (2)(F) of this subsection. 9
(c) Vermont Rule of Probate Procedure 43 (relaxed rules of evidence in 10
probate proceedings) shall apply to hearings under this section. 11
(d) The court shall grant the petition if it finds after the hearing by clear 12
and convincing evidence that: 13
(1) the child is a child in need of guardianship as defined in subdivision 14
2622(2)(A) of this title because the parent has been subject to an adverse 15
immigration action that renders the parent unavailable to care for the child; 16
(2) the child’s custodial parents knowingly and voluntarily consented to 17
the standby guardianship; 18
(3) the guardian or the custodial parent’s attorney made reasonable 19
efforts to notify the parent of the proceeding; 20
(4) the agreement is voluntary; 21 BILL AS INTRODUCED S.95
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(5) the proposed guardian is suitable; and 1
(6) the guardianship is in the best interests of the child. 2
(e) There shall be a rebuttable presumption that the guardianship is in the 3
best interests of the child if: 4
(1) the custodial parent has been subject to an adverse immigration 5
action and is unavailable to care for their child; 6
(2) all parties consented to the guardianship; and 7
(3) the custodial parent is represented by an attorney. 8
(f) If the court grants the petition, it shall approve the agreement at the 9
hearing and issue an order establishing a guardianship under section 2628 of 10
this title within 45 days after the petition was filed. The order shall be 11
consistent with the terms of the parties’ agreement unless the court finds that 12
the agreement was not reached voluntarily or is not in the best interests of the 13
child. 14
Sec. 5. 14 V.S.A. § 2628 is amended to read: 15
§ 2628. GUARDIANSHIP ORDER 16
(a) If the court grants a petition for guardianship of a child under 17
subsection 2626(d), 2626a(d), or 2627(d) of this title, the court shall enter an 18
order establishing a guardianship and naming the proposed guardian as the 19
child’s guardian. 20 BILL AS INTRODUCED S.95
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(b) A guardianship order issued under this section shall include provisions 1
addressing the following matters: 2
(1) the powers and duties of the guardian consistent with section 2629 of 3
this title; 4
(2) the expected duration of the guardianship, if known; 5
(3) a family plan on a form approved by the Court Administrator that: 6
(A) in a consensual case is consistent with the parties’ agreement; or 7
(B) in a nonconsensual case includes, at a minimum, provisions that 8
address parent-child contact consistent with section 2630 of this title; and 9
(4) the process for reviewing the order consistent with section 2631 of 10
this title. 11
Sec. 6. 14 V.S.A. § 2629 is amended to read: 12
§ 2629. POWERS AND DUTIES OF GUARDIAN 13
(a) The court shall specify the powers and duties of the guardian in the 14
guardianship order. 15
(b) The duties of a custodial guardian shall include the duty to: 16
(1) take custody of the child and establish his or her the child’s place of 17
residence, provided that a guardian shall not change the residence of the child 18
to a location outside the State of Vermont without prior authorization by the 19
court following notice to the parties and an opportunity for hearing; 20
(2) make decisions related to the child’s education; 21 BILL AS INTRODUCED S.95
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(3) make decisions related to the child’s physical and mental health, 1
including consent to medical treatment and medication; 2
(4) make decisions concerning the child’s contact with others, provided 3
that the guardian shall comply with all provisions of the guardianship order 4
regarding parent-child contact and contact with siblings; 5
(5) receive funds paid for the support of the child, including child 6
support and government benefits; and 7
(6) file an annual status report to the Probate Division, with a copy to 8
each parent at his or her the parent’s last known address, including the 9
following information: 10
(A) the current address of the child and each parent; 11
(B) the child’s health care and health needs, including any medical 12
and mental health services the child received; 13
(C) the child’s educational needs and progress, including the name of 14
the child’s school, day care, or other early education program, the child’s grade 15
level, and the child’s educational achievements; 16
(D) contact between the child and his or her the child’s parents, 17
including the frequency and duration of the contact and whether it was 18
supervised; 19
(E) how the parents have been involved in decision making for the 20
child; 21 BILL AS INTRODUCED S.95
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(F) how the guardian has carried out his or her the guardian’s 1
responsibilities and duties, including efforts made to include the child’s parents 2
in the child’s life; 3
(G) the child’s strengths, challenges, and any other areas of concern; 4
and 5
(H) recommendations with supporting reasons as to whether the 6
guardianship order should be continued, modified, or terminated. 7
(c) In the case of a standby guardianship petition filed pursuant to section 8
2626a of this title, the guardian shall provide notice of all changes and status 9
reports to the custodial parent at the parent’s last known email address and to 10
the custodial parent’s attorney at the attorney’s last known address. 11
Sec. 7. 14 V.S.A. § 2632 is amended to read: 12
§ 2632. TERMINATION 13
(a) A parent may file a motion to terminate a guardianship at any time. The 14
motion shall be filed with the Probate Division that issued the guardianship 15
order and served on all parties and interested persons. 16
(b)(1) If the motion to terminate is made with respect to a consensual 17
guardianship established under section 2626 of this title or a standby 18
guardianship established under section 2626a of this title, the court shall grant 19
the motion and terminate the guardianship unless the guardian files a motion to 20
continue the guardianship within 30 days after the motion to terminate is 21 BILL AS INTRODUCED S.95
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served. In the case of a standby guardianship established under section 2626a 1
of this title, the court shall accept filings that do not meet the format and 2
signing requirements for the motion under Vermont Rules of Probate 3
Procedure 10 and 11. 4
(2) If the guardian files a motion to continue the guardianship, the 5
matter shall be set for hearing and treated as a nonconsensual guardianship 6
proceeding under section 2627 of this title. The parent shall not be required to 7
show a change in circumstances, and the court shall not grant the motion to 8
continue the guardianship unless the guardian establishes by clear and 9
convincing evidence that the minor is a child in need of guardianship under 10
subdivision 2622(2)(B) of this title. In the case of a standby guardianship 11
established under section 2626 of this title, the custodial parent shall be 12
permitted to appear at and participate in the hearing remotely. 13
(3) If the court grants the motion to continue, it shall issue an order 14
establishing a guardianship under section 2628 of this title. 15
(c)(1) If the motion to terminate the guardianship is made with respect to a 16
nonconsensual guardianship established under section 2627 or subdivision 17
2632(b)(3) of this title, the court shall dismiss the motion unless the parent 18
establishes that a change in circumstances has occurred since the previous 19
guardianship order was issued. 20 BILL AS INTRODUCED S.95
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(2) If the court finds that a change in circumstances has occurred since 1
the previous guardianship order was issued, the court shall grant the motion to 2
terminate the guardianship unless the guardian establishes by clear and 3
convincing evidence that the minor is a child in need of guardianship under 4
subdivision 2622(2)(B) of this title. 5
Sec. 8. EFFECTIVE DATE 6
This act shall take effect on passage. 7