Throughout our 2020 series, Fighting for Our Rights, Rise has highlighted information about parents’ legal rights and representation — both to prevent child welfare system involvement and to protect your family if ACS does become involved.
Parental designation is a legal option in New York that allows a parent to designate someone you trust to temporarily take care of your child, while maintaining your parental rights and without ACS becoming involved.
Here, Jessica Prince, Policy Counsel for the Family Defense Practice at The Bronx Defenders explains how parental designation works and why you might consider using this option to plan for both expected and unexpected situations when you might need help caring for your child.
Q. What is parental designation?
A. Parental designation is when a parent completes paperwork — writes a letter or fills out a form — that allows another person to take care of their child. You can designate a person to take care of your child at a time you can’t, for example, if you are going to be in the hospital. It can be for a longer time as well.
Q: Why would a parent choose this option?
A. It is a way for a parent to plan for the expected and unexpected and to avoid the family regulation system (child welfare system) stepping in to take care of your child.
It can be as basic as you are going out of town and you need someone to pick your child up from school. You can give a person you designate the power to make decisions about your child’s care if there is an emergency.
You can fill out the paperwork in advance and identify who you would like to take care of your child if you, as a parent, experience an emergency. If you need to go to a drug treatment program or mental health treatment, you can sign something that says a friend or family member can take care of your child. It is essentially temporary custody without going through a court.
You maintain your parental rights. You are just saying, “This person can also care for my child.”
Q. Can a parent create a parental designation plan in case something unexpected happens — for instance, if you become ill or are arrested?
A. Yes. You can make a plan in advance just in case something happens, like if you were to suddenly become ill or get arrested or deported. Some parents have found this to be important during COVID to make sure that their child will be taken care of if they get sick. It is planning for something in advance just in case, and you can have a clause in the paperwork that explains what activates it.
Q. How does it work? Is there a form to fill out?
A. It can simply be a letter you write or you can fill out a form. OCFS has a designation of person in parental relationship form. It is on their website and has everything you need. On the NYS Teaches website, you can find a parental designation form that can be used specifically to temporarily allow another person to make education-related decisions on behalf of your child. If you are writing a letter, you can be specific about the decisions the person you designate can make.
Include on the letter or form:
- your name, address and telephone number,
- the name, address and telephone number of the person you are designating,
- your child’s date of birth,
- the date it will start and end, or a triggering event that will start it for an emergency.
You and the person you are designating to care for your child both sign it. A copy of the form or letter should be given to both people — keep one for yourself and give the other to the designated person. It is also important to make sure that everyone who might need the parental designation plan has it. It might be smart to give it to your child’s school and make sure the person you are designating is on the blue card at school to pick up the kids. You can also notify a doctor that, in the event of an emergency, this person is someone who can help. It is a way of planning for what your child could need.
If you are granting parental designation for over 30 days, the form or letter needs to be notarized and needs to include the designated person’s written consent that they are willing to care for the child(ren). It also needs to state that there are no prior court orders that would prohibit the designation.
The maximum time for parental designation is one year. If you need to extend it after 12 months, you can execute another parental designation plan.
Q. Can any parent use parental designation?
A. Yes, with some limitations, like if there are any existing court orders. For example, if you currently have an ACS case, you can’t use parental designation instead of a foster care placement because you have court involvement already. If you are currently in a custody battle or if there is a custody order that limits the decisions you can make, you can’t do this without the other parent also approving it. If you have existing custody or visitation orders, it is best to check with an attorney.
Q. Is there legal assistance available for parents who are interested in using parental designation?
A. You maintain your parental rights with this form. However, anytime you’re signing something that potentially can have legal consequences, you can call legal services. At Bronx Defenders, we have an early defense team of people who answer questions and help people who have interactions with ACS. In this situation, ACS is not involved, but because it is an attempt to prevent ACS involvement, if you live in the Bronx, you can call The Bronx Defenders. If we can’t help you, we will help you find someone who can. If you live in another part of New York City, you can contact a legal agency in your borough.
Q. What decisions can the person you designate make about your child?
A. You are still the person who is responsible for your child. You identify what the person you designate can do in the paperwork. The more detailed it is, the more protection you have for determining what they can and cannot do. For example, you can say, “This person has the authority to pick my child up from school and soccer practice.” Or whatever you think is necessary for your child.
You might want to say, “In the event of an emergency, this person can make decisions about my child’s medical care.” If you don’t want them to make those decisions, you can say, “In the event of an emergency I can be contacted at this number.”
If you have questions about what to include, an attorney can help you decide what to include and/or whether using a parental designation plan is the right path for your family.
Q. Can you set a time limit or end it at any time?
A. Yes. You can designate an amount of time. If you know you will get out of the hospital or get back from a trip on a certain date, you can put that end date down in the letter or paperwork. If you want to end it early, all you have to do is pick up your child. You can revoke the parental designation at any time.
Q. What if the person you designate doesn’t want to return your child? What if they call ACS and make up a story about you?
A. You want to make sure whoever you assign is someone you really trust. That said, you are the legal parent. As a parent, you have the legal authority to walk up and get your child. You have legal mechanisms to get your child back if for any reason that person is holding your child illegally.
If the person you designate calls CPS, ACS could investigate or bring a case against you. If they call CPS, reach out immediately for early legal representation.
In addition to choosing someone you trust, it is also important that you make any necessary preparations and arrangements to show you are adequately planning. For example, pack a bag for your child and offer any financial assistance you can to the designated parent.
Q. Rise opposed proposed OCFS Host Homes regulations. What is the difference between Host Homes and parental designation?
A. With parental designation, you choose a person who is already in your life, and there is no government oversight. With the Host Home regulations, an agency would place your child with a volunteer and they would be subject to OCFS regulations and approval.
Parental designation is a parent exercising your ability to choose who your child should be around. This is something that wealthy people do all the time and have access to because they have money. They have nannies and people who stay with their children while they travel.
The law allows any parent at any income level to use parental designation to plan for their family without the government getting involved. Parents should know they have the right to allow someone to take care of their child if they need it. This is an option for any parent as long as there is not a court order limiting it. It is important that you choose a person you have a relationship with and trust.