Guardianship of a minor child occurs when the court gives authority to take care of a child to someone other than the parents. The legal guardian of a child has the same role and responsibilities as a parent in making decisions for the child. The court may appoint a guardian when a parent dies, becomes too ill or disabled to care for the child, becomes incarcerated, or is deported. A guardian may be appointed after the parent is incapacitated, or a parent may appoint a "standby guardian" to take care of the child in the future should something happen to the parent.
Pathways to Guardianship
In New York, the court may appoint a guardian when a parent requests it or the potential legal guardian does, depending on the circumstances. A parent may nominate a guardian by written designation, will or deed of guardianship.The named guardian must be approved by the court before the guardianship will take effect. To be a guardian, you must be a United States citizen and at least 18 years old. When considering who to name as a guardian for minor children in a will, you should consider who would make the best decisions for your child and who would take the best care of your child -- as well as considering the health and age of the potential guardian.
Filing for Guardianship
You may seek appointments for guardianships through the Surrogate's Court or the Family Court. Generally, if property is involved or the appointment of guardianship was completed through a will, you should go to Surrogate's Court because that is the court responsible for probating wills. A petition for guardianship may be filed by the parents, social services agency or another adult. The petition should include the child's name, date of birth and address, name and address of the potential legal guardian, names and addresses of persons currently taking care of the child, and reasons the judge should grant guardianship.
At the guardianship hearing, the court will hear testimony to determine if guardianship may be granted. The court's primary concern is the best interest of the child. If the child is over 14, the court may consider the child's preferences. You are expected to bring a number of documents to the hearing, including the child's birth certificate, proof of the child's current address, names of the child's caretakers, written permission of the child if she is over 14, and proof of current guardian's address. If the parents are living, you must provide written permission by the parents. If the parents have passed away, you must provide a death certificate.