Virginia

I. Designation of Standby Guardian
II. Agreement of the Non-Custodial Parent
III. Role of the Standby Guardian
IV. Court Process
Resources


I. Designation of Standby Guardian

At any time, a parent who is "afflicted with a progressive or chronic condition caused by injury, disease or illness" that "to a reasonable degree of medical probability" will be terminal, may designate a standby guardian for the children. The designation shall include these triggering events to activate the guardianship: (1) incompetence; (2) debilitation plus consent; and (3) death. [Juv. 16.1-352]

Prior to a triggering event, the parent may file a petition for court approval of the standby guardian. The petition must be accompanied by a physician's written diagnosis supporting the parent's eligibility for a standby guardian: a physician's written diagnosis of the parent's "progressive or chronic condition caused by injury, disease or illness from which, to a reasonable degree of medical probability" she cannot recover. [Juv. 16.1-349; 16.1-351] In addition to the triggering events permitted in a designation, upon request the court may provide in its order that written consent alone can activate the guardianship. [Juv. 16.1-349; 16.1-351]




II. Agreement of the Non-Custodial Parent

The other parent is required to be notified and served with summons "promptly" if his identity and whereabouts are known." [Juv. 16.1-350.C] If the other parent is located, the court is required to hold a hearing. The non-custodial parent's request for a hearing must be received by the court within 10 days of the time the notice was sent – a very short turn-around. [Juv.16.1-350.C] However, the non-custodial parent may petition the court at any time for review of whether the standby guardianship is in the child's best interests. [Juv. 16.1-355]

There are a number of cases decided under the Virginia Juvenile code that describe parental unfitness, particularly relating to termination of parental rights. For example, unfitness is indicated by abandonment of a child without justification. [Robinette v. Keene, 347 S.E. 2d 156 (1986)] Extended imprisonment, when combined with other evidence, can support a court's finding that a child's interests are not best served by continuing a parent-child relationship. [Ferguson v. Stafford County Dept. of Social Servs., 417 S.E.2d 1 (1992)]




III. Role of the Standby Guardian

The standby guardian's tenure is described specifically as "temporary," meaning that a separate petition would be required after the parent's death to convert it to a permanent status. [Juv. 16.1-349; 16.1-353] The standby guardian is required to act in a manner "consistent with the known wishes of a qualified parent." [Juv. 16.1-349] Whether or not court process has approved the standby guardianship at the time a triggering event occurs, the standby guardian has 30 days within which to file the proper documents. Those documents would be a determination of incompetence, or determination of debilitation with consent, or a simple consent (if those were included in the court order) --- or, of course, a death certificate. If only a designation – and not a judicial appointment – is in effect at the time the triggering event occurs, the standby guardian must also file a petition for judicial approval of the guardianship. [Juv. 16.1-351]
The standby guardian carries both the powers of guardian over the minor's person as well as guardian of the minor's property, unless the terms of an order delimit it. [Juv. 16.1-351]

The standby guardian enables "the parent to plan for the future care of a child" in a way that is "consistent with know wishes" of the parent. [Juv. 16.1-349]




IV. Court Process

Court process begins whenever a petition for a standby guardian is filed. That can be before a triggering event, [Juv. 16.1-350; 16.1-351], or after it. [Juv. 16.1-352]

If there is an identified non-custodial parent or any other interested relative, there must be a hearing. The parent does not have to appear of she is too ill. [Juv. 16.1-350C] The court will make its decision based on the best interests of the child. [Juv. 16.1-352] A guardian ad litem may be appointed to help the court make this decision. [Juv. 16.1-350] At any time following approval of the standby guardianship, a non-custodial parent (as well as a "step parent, adult sibling, or any adult related to the child by blood, marriage or adoption") may petition the court to review the guardianship at any time. [16.1-355]

Within 90 days after the parent's death a petition to determine permanent guardianship must be filed. [16.1-353]

		Code of Virginia Title 16.1 Courts not of Record Chapter 11. Juvenile and Domestic Relations District Courts Article 17. Standby Guardianship section Juv. 16.1-227; 16.1-349; -350; -351; -352; -353; -354; Probate 31-9.