House amendment to H.98 would add expedited ‘standby’ guardianships for children when parents face immigration action

Eric Fitzpatrick, an attorney in the Office of Legislative Counsel, told the House committee on May 7 that the Senate amendment to H.98 adds a new expedited probate process—a “standby guardianship”—to allow a chosen guardian to assume care for a child when a custodial parent is rendered unavailable because of an adverse immigration action.

The proposal adds a narrowly defined circumstance to the existing statutory list of reasons the probate division may approve a consensual guardianship and creates filing, consent, hearing and termination rules for the standby guardianship.

Fitzpatrick summarized the change and its purpose: “This adds one more to that list … when a custodial parent of the child is unavailable to care for the child because the parent has been subject to an adverse immigration action,” he said. The amendment, originally Senate S.95, was attached to H.98 and adds a new statutory section describing the standby guardianship procedure.

Why it matters: Committee members and staff said the amendment is intended to avoid children entering state custody when their custodial parent is taken into federal immigration custody; the standby guardianship lets parents, a proposed guardian and counsel file a consensual guardianship agreement in advance and, if a parent is detained, have an expedited probate process to place the child with the chosen guardian instead of transferring the child to Department for Children and Families (DCF).

Key provisions: The amendment defines “adverse immigration action” by listing several triggering events (examples include arrest or detention by federal law enforcement for alleged immigration violations, removal proceedings, charging or indictment on immigration-related offenses and other federal actions that render the parent unavailable). If the adverse immigration action renders the custodial parent unavailable to care for the child, the statute allows a petition for a standby guardianship.

The petition must be accompanied by a consent form signed by the custodial parent that the court administrator will standardize. The bill permits an emergency ex parte filing in which the court may waive standard notice and hearing requirements if the court finds (a) the child’s best interest requires immediate action and (b) the custodial parent has been detained and cannot be reached despite reasonable efforts. If the court grants an emergency petition, it must schedule a hearing “as soon as practicable” and not later than three business days after the petition is filed; absent emergency circumstances, the statute calls for the court to schedule a hearing within 14 days and to issue an order establishing the guardianship within 45 days unless extended for cause.

Burden of proof and findings: The court may grant a standby‑guardianship petition only after finding by clear and convincing evidence that (1) the adverse immigration action rendered the custodial parent unavailable, (2) the custodial parent knowingly and voluntarily consented, (3) reasonable efforts were made to notify the parent, (4) the proposed guardian is suitable, and (5) the guardianship is in the child’s best interest. The statute creates a rebuttable presumption that, if those conditions are met and the parent is represented by counsel, the guardianship is in the child’s best interest.

Termination rules: The amendment presumes termination if the custodial parent is released from custody and reunites with the child. A parent may file a motion to terminate at any time and the court must grant it unless the guardian files a motion to continue the guardianship within 30 days; if the guardian moves to continue the matter becomes an adversarial, involuntary guardianship proceeding under existing law.

Questions and concerns raised: Committee members pressed the drafter on multiple points. Lawmakers asked whether the standby guardianship could be used where no family member exists who could serve as the guardian, how courts will verify parental consent if the parent is detained or abroad, what “adverse immigration action” means in practice and whether the statute could be perceived as interfering with federal immigration enforcement. Fitzpatrick repeatedly noted that the provision focuses only on whether an adverse immigration action occurred and whether the resulting unavailability of the parent is shown; the bill does not change federal immigration procedures.

Several members asked about due process and timing given court backlogs; Fitzpatrick noted the draft includes both emergency (three‑day) and non‑emergency (14‑day) timelines and that judges and practitioners would determine how they operate in practice. Members also asked for clarification on whether consent may be given by proxy (the draft requires the custodial parent’s own signature on the consent form), whether a nonfamily guardian may be appointed (the bill does not require familial relationship), and how the probate court will evaluate guardian suitability.

Administrative details: The bill tasks the court administrator with producing the consent form and permits remote participation by detained parents. The text relaxes evidentiary formality in certain filings where required by geography or other practical constraints and cross‑references existing probate rules (including Rule 4 for service) and standards for hearings in guardianship proceedings.

Ending: Fitzpatrick said the confirmatory adoption portion of H.98 (Section 1 of the bill) is unchanged from the House version and that the standby guardianship section would take effect on passage. Committee members said they would follow up with practitioners and the judiciary for practical details about implementation, remote participation, and whether additional statutory clarifications or safeguards are needed.