Naming a Guardian for my Child

As a parent, you are legally responsible for supporting your child until they reach the age of majority (18 years old). You must provide medical care, education, food, housing, and clothing. If you were to unexpectedly die or become incapacitated, somebody needs to step in and fulfill your parental duties. 

Parents should name a guardian—and ideally, a list of alternate guardians in case your first choice does not work out—in their estate plan. If you do not name a legal guardian in your will or a separate document, a court will choose somebody to care for your child.

Your choice as a guardian for your minor child may be a close friend or family member who may not reside in the United States or is not a U.S. citizen. The person you name to be your child’s guardian does not necessarily have to be a US citizen or a permanent resident. However, it is ultimately up to the court to appoint a guardian, and the court will always act in the best interests of the child. The court will evaluate whether they meet guardianship qualifications under state law. These qualifications typically include a person’s age, criminal record, lifestyle, physical and mental capabilities, and financial situation. The court looks at several factors, including the individual’s residency or citizenship status. A person who is not legally permitted to live in the United States may not be automatically dismissed by the court if they are otherwise qualified to act as guardian. 

Nominating somebody who does not have a lawful U.S. status, or who lives outside of the country, could raise the following questions with the court: 

• Does the appointment of the guardian mean taking the child outside of the country to live?

– If so, is that country a safe and suitable location for the child?

– What will the legal status of the child be in the new country and how will that impact them?

– Does the child have ties with the proposed country? Do they speak the language? Have they visited before?

• Can the non-U.S. citizen guardian travel to the United States and remain in this country for the guardianship legal process? Are there any legal issues that prevent them from obtaining a visa for this purpose
• Could the guardian move permanently to the United States and gain lawful status to remain here and raise the child?

As a parent, appointing a guardian is among the most important decisions you will ever make. Before making that decision, you should talk with an experienced estate planning attorney who can help you understand options and issues that may not have occurred to you. 

If you decide to choose a non-U.S. citizen as your child’s guardian, our lawyers can advise you about factors to consider and help you identify at least one U.S.-based alternate in case your first choice does not work out. We recommend reviewing your guardianship wishes, and your estate plan in general, every few years, especially after a major family event. 

To start planning for the future now, please contact us to schedule an appointment at 281-359-0100.