Guardianship - A person may petition Family Court or Surrogate's Court (if the proceeding is brought to be named guardian of property it must be brought in Surrogate's Court) of a child under the age of 18 years. The guardian will have the legal power to take care of the child, having the same authority as a parent concerning issues of health, education and welfare. A parent may need a guardian appointed for their child if he/she becomes disabled and unable to care for the child or is imprisoned. A guardian may also be appointed when one or both parents die. The court has the final say as to if and who should be appointed guardian, if the biological parents are dead or incompetent. In instances where the other parent is alive, is of sound mind and opposes the appointment of the guardian the court will not appoint the guardian. Both parents' permission is required for the appointment of a guardian, unless one or both are dead. In addition, if the child involved is over the age of 14 years, his/her consent is also required.

A parent may name a guardian in a will, deed of guardianship or designation but it must still be approved by a Family Court or Surrogate Court to make the guardianship official.

The party petitioning for guardianship will have to locate the biological parent(s) to put them on notice of the court case, have their home inspected by the local agency, have to be fingerprinted to have a criminal background check conducted and will have to have a State Central Registry clearance. Once the guardian's criminal background is investigated, if he/she has been convicted of a serious crime or has reported incidents of child abuse, they will not be able to be appointed as guardian. A court-appointed attorney will be assigned to represent the child. This attorney, called law guardian, will meet with the child and report to the court his/her wishes/desires.

Guardian and Child Support/Child Visitation:

The legal guardian has the rights as if he/she were the child's biological parents. However, the child does not relinquish any rights or benefits he/she is entitled to as the child of his/her biological parents, i.e. child support and keeping the parents' last name. But the child would not be entitled to any rights or benefits of the legal guardian that the guardian's biological child(ren) have. At the same time, the non-custodial biological parent may seek child visitation.

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