Naming a Guardian for Minors in your Will
Q: Can I name someone outside of the United States as guardian of my minor children if I pass away?
A: It depends! In the end, the final decision on who will serve as legal guardian of a minor after the death of the parents is within the full discretion of the court, the Judge will have the final say.
US citizens may serve as guardians of minor children regardless of where they live – in any of the 50 states or in another country. NY residents may also serve as guardian, even if they do not have US citizenship. If an individual is not a US citizen or a NY resident, otherwise known as a non-domiciliary alien, he or she can only serve as a co-guardian with a NY resident. The need for a guardian of your minor children would only come into play if both parents have passed away or cannot fulfil their role of natural guardian for reasons other than death.
Despite the fact that your preference for guardian is not eligible due to citizenship or state residency, your Last Will & Testament should state that it is within the discretion of that person to nominate an appropriate guardian or NY resident co-guardian of your minor children.
Nominating a NY resident in your will is the best way to ensure that your wishes will be followed and that your children will remain in the custody of someone you trust. Even if a US-citizen is considered eligible to be a guardian, it may take time for him or her to travel to NY and take custody of your children. While NY courts and agencies will look out for the safety and welfare of children, it will be better for your children to be in the custody of someone which whom they are familiar until a guardian can take over.
If a parent does not know of any NY resident or US citizen who he or she would trust to be the guardian of his or her minor children, the parent may express in his or her will the desire for minor children to move to the country where the non-US citizen, non-NY resident lives, and can raise the children until they turn 18. For this to happen, NY courts must still be involved and contemplate several considerations in determining whether moving to another country would best serve the child’s interests. One consideration is the reasoning of the parent(s) in naming a non-US citizen, non-NY resident as guardian of minor children. This can include a strong relationship between the children and chosen guardian, a lack of other family members living in the U.S., or a desire for your children to grow up with certain cultural or religious traditions and values. Other considerations include whether the children are citizens of the country to which they would be moving, if the children speak the language of the country to which you would like them to move, and if the country has human rights laws comparable to those in the U.S.
Making your intentions clear in your estate planning documents is the best you can do to ensure your children are properly cared for in the event of your untimely death. The process of appointing a legal guardian can take many months, so it is important to have a US-based or a NY-based guardian to care of your kids while the legal process plays out.
By Britt Burner, Esq. & Erin Cullen
Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. Erin Cullen is a graduate of the Maurice A. Dean School of Law at Hofstra University. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.