Appointing a Guardian for a Minor Child in New York

By Christine Funk, J.D.

Appointing a Guardian for a Minor Child in New York

By Christine Funk, J.D.

Guardianship refers to a legal relationship that gives a person, called a guardian, the rights and responsibilities that come with caring for a child, called a ward, as a parent would. In New York, this person may be in charge of a child's personal being, his or her property, or both.

Man and young girl looking at each other smiling

The person in this role makes life decisions for their ward, including where they go to school, decisions about health care, and other personal, lifestyle choices. Someone whose responsibilities include caring for property makes decisions about a ward's money, investments, property, and savings. Oftentimes, the person best suited to make financial decisions for a child is not the same person as the one who would best raise the child. However, a single individual may be appointed to handle both.

Courts appoint guardians to children when their parents cannot take care of them. Situations that can lead to this include:

  • The death of a parent
  • A parent becoming too ill to care for the child
  • A parent's disability or incapacity
  • A parent serving a prison sentence
  • The deportation of a parent
  • A parent's deployment in active military service

Guardianship of Children in New York

In New York, the court governing the guardianship of children depends on the circumstances under which a person has applied for this kind of care.

If a child has inherited over $10,000, the petition is filed in Surrogate's Court. One must file an appropriate petition form in the county where the child lives. Similarly, when a parent dies or the parents are otherwise not able to care for the child, the form should also be filed in Surrogate's Court. However, if there is no property associated with it, the petition is filed in Family Court.

Both Surrogate's Court and Family Court have the power to appoint a guardian for the person of the child.

Conditions of Granting Guardianship

When the child is over 14 years of age and the parents are alive, both parents and the child must consent in most circumstances. However, the court may appoint a guardian over the objection of a parent or child if the court feels the appointment is in the child's best interests.

Parents can also designate this role to someone in their will or revocable living trust.

Finally, in some cases, a parent may appoint a standby guardian. In this situation, the parent recognizes they may not be able to make important decisions for a child at some point in the future. The parent specifies the situation under which standby care starts, such as when the parent dies or when the parent becomes too ill to continue caring for the children.

Best Interests of the Child

While a parent may choose the person they want to be their child's guardian, the decision is ultimately up to the court. The court uses a "best interests of the child" standard to evaluate whether the person or persons designated are suitable.

It is a good idea for all parents to designate a guardian for their child in the unlikely event they die or become incapacitated. In New York, the appropriate petition and court to file in are dependent on your circumstances. An attorney or legal expert experienced in trusts and estates can help.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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