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Tuesday, March 22, 2011

Guardians vs. Godparents

Recently my wife and I welcomed our second child, Cooper Bowie Jimenez, into the world.  Cooper's arrival has reminded us just how many details about having an infant we conveniently forgot since his brother's arrival three years ago.  These can include, but are not limited to, sleepless nights, irritability, doing many more loads of laundry than you ever thought possible and of course sleepless nights.  It also started us on the discussion of who we would ask to be Cooper's godparents.

Traditionally, godparents were informally responsible for ensuring the child's religious education was carried out, and for caring for the child should it be orphaned. Today, the word godparent might not have explicitly religious overtones, especially in a household that includes parents of different faiths.  As a Cathish (catholic/jewish - a term my wife would like to take credit for) family we see godparents as individuals chosen by the parents to take an interest in the child's upbringing and personal development.

One question many people ask is "Do godparents automatically get custody of minor children in the event something happens to my spouse and myself?"  The answer is no.  The role of godparent is one that has deep personal meaning in many denominations and is a great demonstration of love and trust, but a godparent has no automatic right to custody of a minor child.  Naming someone as godparent to your child is a demonstration of your intent, but it is not the endgame.  The endgame is guardianship.

In New York State, guardianship of infants (children under 18 years old) is determined based upon Article 17 of the Estates, Powers and Trusts Law.  The godparent would have to petition the appropriate Surrogate's Court to be appointed the guardian.  As is the case with all guardianships, the appointed guardian may have one or two roles.  These roles are guardianship of the person and guardianship of property.

Unlike guardianships of mentally retarded/developmentally disabled persons under Article 17a OR guardianships of incapacitated persons under Article 81, a guardianship under Article 17 has a certain shelf life.  An Article 17 guardianship ends when the infant reaches adulthood.

An additional way to make your intent known regarding your choice of a caregiver for your child is in your Last Will and Testament.  In this instrument you can specifically state that you wish for a particular party to serve as guardian of any minor children you may leave behind.  Once again, this is a demonstration of intent and not the endgame.  The endgame remains the nominated guardian going to the Surrogate's Court to be named the legal guardian.  

The Law Office of Daniel A. Jimenez P.C. focuses on Surrogate's and Guardianship Law. Call today for a free initial review of your estate planning documents and consultation.

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