Defining Legal Godparents
Godparents have traditionally been described as "someone who is given special status regarding the religious education of a child." Nowadays, the term "godparent" is often used to describe those people designated in a Will or Living Trust to be responsible for the care of a minor child if the parents cannot perform their parenting duties. They are sometimes also called "legal guardians." Some attorneys also refer to them as "testamentary guardians," meaning that they are appointed in a Will or Trust.
In our modern age where second marriages are more common and children having children is not so uncommon, many people are establishing "blended families." In such a situation , a parent may choose to create a testamentary guardian provision in their Will or Trust designating someone outside of the step-parent or second marriage spouse to care for the minor children should the parent pass away. For example, if Jane is married to Bill and had two children from a previous marriage, Jane may wish to appoint her sister as the guardian of the children rather than her second husband. If Jane did not have a Will or Trust and passed away, the court may decide that Jane’s second husband has priority to be the guardian even if Jane had expressed a different intention. This is why it is so important to have a Will or Trust in place to designate a guardian for your minor children to avoid litigation and possible negative outcomes for the children when parents die.
Legal Obligations of Godparents
This legal responsibility may also extend to questions of guardianship if a parent or guardian was to pass away, die or become incapacitated, and it is something that is advisable to speak to your attorney about in advance as you make these designations in your estate plan. In relation to a will, make sure you are clear in how you want to appoint godparents. Sometimes this is done by naming the parents and stating that upon their death you want these individuals to be the legal guardians of your children. Other times, a Will may only be used to express your desires in relation to who should not be appointed a guardian. Generally, in your estate plan, you have to make sure that you are being clear about these issues, especially to the extent they may be legally binding. It is important to remember that because godparents deal with issues of a spiritual nature, those may not be considered in determining the will or intent of a parent involved in making a Godparent designation. Now, if you are acting as a Godparent, you have less legal responsibility to a child than a true parent. Although you may think of yourself as an adoptive or semi-adoptive parent, in the eyes of the law you will not have the same power or authority as a natural or biological parent. Often, godparents function in a capacity that is more educational rather than legally binding. If you are planning to give your children additional legal guidance or assistance that is formal, it is always advisable to do so in that role as opposed to simply acting as an attorney-in-fact or some other such designation.
How to Legally Designate a Godparent
Legally appointing a guardian for your children through legal documents like a Will, Durable Powers of Attorney, and a Durable Power of Attorney for your children is a great choice. As I addressed in a previous blog, Godparents are often not recommended as the first choice for guardianship. There are a lot of limitations to Godparents. For example, a typical Godparent cannot force you to exercise your physical custody rights, even if they are living with you. A typical Guardian can.
However, if you plan to do so, there are some ways to absolutely formalize it. You and a prospective godparent can enter into a formal agreement that becomes part of your Estate Plan as a contract. You should also have the agreement take the form of an affidavit.
You might consider this language:
In consideration of my feeling of close personal attachment to _______________________, born on 1/1/2000 (date of birth), the recipient of my love and affection, I hereby agree to serve as the child’s Godparent and Guardian of the Child, if such position and appointment is granted to me. I am an adult over 18 years of age. I have no reason to believe that I will be unsuitable as the Guardian of the Child due to criminal convictions, such criminal history to be revealed to my/our attorney, and I am of suitable moral character. I realize that time is of the essence in the undertaking wherefore, I have set my set my hand hereto upon the _____ day of ____________, 20___.
This is a long term commitment. Normally, an individual may not be appointed Guardian if the person fails to remain a resident of the state until the child has reached the age of 18 even if the appointment of the Guardian was made consistent with the child’s parent’s wishes.
If you are overseas, you might consider the following language:
I am currently serving in the United States Armed Services and am stationed overseas. My legal residence of record is __________________________________. I acknowledge that because of the nature of the duty I am now performing, the distance involved in traveling to the United States, and the fact that other arrangements must be made for the care of my minor child (or children) in time of my absence, unless the executor of my Will or other person having control of my minor child (or children) may elect to have me return to the United States, I would be unable to perform the duties of guardian of the minor child (or children) before the completion of such duty. I, therefore, nominate, constitute, and appoint ______________, if not also serving in the United States Armed Forces, or if also serving in the armed forces, then _____________ of the United States Army, or if not available then _____________ or any other person willing to serve in his place, in the order named, to be and act as substitute guardian for my minor child (or children) until I am able to resume my duties as guardian or until the child reaches age 18.
Advantages of Legal Godparent Appointment
In today’s complex world, the designation of a legal godparent provides a level of security and support both for the child and the parents or guardians. A legal godparent designation is more than a tradition passed down from our religious ancestors. It is recognition of a lifelong commitment to ensure a child has a mentor for life. It provides a child with an extra layer of security as the involvement of the godparent in the child’s life can ensure that the child will have the benefit of having a loving, knowledgeable adult in his or her life who cares about and is focused on the child’s best interest. The godparents can also be a source of emotional and spiritual support, where parental forces have let the child down.
A legal godparent designation also benefits the parents or guardians as once appointed, a legal godparent provides the assurance that should anything happen to the child’s parents or guardians the legal godparents will have the standing to become the legally designated guardian of the child. Unlike other methods of identifying potential guardians , such as creating a list in your Will, a legal godparent designation is court-sanctioned and the potential for any conflicts is minimized.
You may wonder why having two legal godparents might be important when already having two parents or guardians. The reasoning is similar to a two-parent household versus a one-parent household; where two are better than one, having more designated legal parental authority adds a layer of security should a parent be unable to fulfill his or her obligations.
In addition, when a family unit has been shattered by the death of a parent or legal guardian, it is often difficult to determine which parent should step into the role of the child’s caregiver. Having two legal godparents could tip the balance in determining who should serve as the child’s guardian, as each can advocate for his or her rights to serve as the child’s legal caregiver.
Legal Variations by Jurisdiction
The distinction between ‘godparents’ as a religious role and ‘legal godparents’ as a legal relationship often is lost on many people, and is sometimes also referred to as ‘guardianship’ when there is a statutory element providing for the appointment of a guardian. Examples of such statutory schemes can be found in both the Uniform Probate Code, sections 5-201 through 5-205 on appointment and acceptance of guardian, and the Indian Child Welfare Act (ICWA).
In the United States, the matter of parental rights and responsibilities, including custody, is controlled by state law; guardianship relates to the care of a child in the absence of a parent and accordingly is typically established only when there is a particular need to address the welfare of the child apart from the parents. The requirements for establishing the legal status of guardian vary from state to state, but generally require a prospective guardian to file a request with a court, prepare and file an affidavit, and undergo a hearing.
In some other jurisdictions, such as the United Kingdom, the role of godparent is limited to a religious function and does not bestow any direct legal status, but rather places moral and ethical obligations on a godparent. The Children Act of 1989 in the United Kingdom does not mention or otherwise provide for godparents.
Clarification of Legal Godparent Myths
Much like all things religious, the subject of legal godparenting comes with its fair share of myths and misconceptions. Here are a few that are commonly misrepresented: If you’re a Godparent, then you’re the kid’s parent Supreme. Wrong. Godparents are not parents. They’re like parents without the child-friendly perks. Ever wondered if your kid could ever get to live with their godparent? No. That’s because even though you have a beautiful kinship with your child, at law they have (at least) two parents. Legal godparents are not parents. They are in many ways parents without the privilege of making parenting decisions. In a perfect world they are welcome sounding boards and perhaps supervisors in a custody dispute , but they are no more a parent than they are a teacher or coach. Legal godparents have a right of first refusal. Not exactly. While legal godparents may be the first person you call in an emergency, they are not obligated to find a surrogate parent at any time. Instead, this is a privilege that (again) may result in a custody evaluation in the case of a parental dispute. In some cases, a custody dispute may be settled in favor of a godparent. See the section before this one for more detail.