I want to make sure that someone is appointed as the guardian of my minor children if both me and the child’s mother pass away. How can I ensure that my kids will be protected?
Many of my clients are new (and not so new) parents who want to ensure their minor children are cared for in the event that both parents die. It is every parent’s right, but also their responsibility, to take care of this issue and to express their wishes in legal writing. There are two circumstances to consider: what would happen to the care and raising of minor children if both parents were to die, and what would happen if both parents become disabled while the children are minors. This is critical for single parents, and stepparents or non-biological parents who live with but have not adopted the child.
The procedure to name a guardian for minor children is to nominate an individual or individuals in your will to take legal custody of your child. This can, but does not need to, be the same individual as the minor’s trustee, who will oversee the management of any finances left to the minor child.
A guardian nomination is just that — a suggestion to the court that, in most cases, will be upheld if the individual qualifies as a fiduciary, meaning a person in a position of trust. In the State of New York, a person is not eligible to be a fiduciary if he is a “non-domiciliary alien […] except [….] one who shall serve with one or more co-fiduciaries, at least one of whom is resident in this state,” S.C.P.A. 707. That said, the court may still appoint a non-domiciliary alien or a New York resident as a fiduciary in its discretion. An individual who is mentally incompetent, a felon, or who otherwise “does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office,” is also unfit to serve as a fiduciary, as is anyone else who is ineligible in the court’s discretion. The court may also declare as ineligible to act as a fiduciary “a person unable to read and write the English language.”
What does this mean? For international clients, it means that while they should nominate the guardian of their choice based on substance (i.e., their true qualifications to provide the best care for their children). The choice is a mere nomination and is subject to the judge’s approval and order of who will raise a child and have legal custody. Second, for the many ex-patriates living in New York City, it means that extra care must be taken to communicate to the court why the appointment of a non-domiciliary individual as guardian is in the best interest of your minor children. These specifics can be spelled out in the will itself or in a separate writing that should be properly executed.
The other thing to consider is that many non-U.S. citizen parents reside in the U.S. with no real intention to leave, but are insistent that their children be raised in their home country. The thing they fail to consider is that a child who is raised in the U.S. her entire life may not want to leave the U.S. when she is older, because her entire life is based here. It is a very different situation when the child is an infant or toddler and could easily adjust. If a parent wants the child to be repatriated to the home country, the child’s citizenship may be a factor bearing on the judge’s decision. If the parent applied for or obtained dual-citizenship from the home country for the child, this may be deemed evidence by the judge of the parents’ intent for their child to keep a connection to the parents’ country of origin. It has the added impact of providing a basis for which the guardian in the home country can request assistance from his own state department or diplomatic agency to repatriate the child. In the absence of dual citizenship, the home country’s state department lacks standing to assist. This, together with basic border-control issues, poses an obstruction to relocating a child to another country either temporarily, pending the proceeding, or permanently.
In short, international clients with minor children living in the U.S. must pay particular attention to making clear in the will who will raise their child and where.
Alison Arden Besunder is the founding attorney of Arden Besunder P.C., where she assists new and not-so-new parents with their estate planning needs. Her firm assists clients in Manhattan, Brooklyn, Queens, Nassau, and Suffolk Counties. You can find Besunder on Twitter @estatetrustplan and on her website at www.besunderlaw.com.