The major difference between a legal guardian vs. a biological parent is that the legal guardian is court appointed, while the biological parent is naturally designated.
Generally, a legal guardian is a person who is not the biological parent of the child, appointed by the court to make decisions regarding the well-being of the child. In New York, however, there are instances when the legal guardian is the biological parent of the child. When the child receives any amount above $10,000 from a personal injury settlement, from insurance proceeds, or from someone who has died, the parent needs to file a petition for guardianship over the property of the child.
For example, Linda and Michael have two minor children, Ashley, 13 years old, and Rick, 4 years old. Linda’s mom, Betty, was close to Ashley. When Betty died, she left $15,000 to her granddaughter, Ashley, and $5,000 to her grandson, Rick, in her will. All parties live in New York. Both Linda and Michael claim that as biological parents of Ashley and Rick, they are the natural guardians by default, and they can receive the money left by Betty on behalf of Ashley and Rick. In this case, the court will allow Linda and Michael to receive the legacy to Rick of $5,000 because it is below $10,000. For Ashley’s legacy of $15,000, Linda or Michael has to file a petition for guardianship for the property of Ashley with the Surrogate’s Court.
A legal guardian (vs. a biological parent) is a person that needs to be appointed by the court. There are many instances where a court might appoint a legal guardian: when the parents have died, when they are in prison, or when they are unfit to care for the children, to name a few. Even when parents nominate a guardian for their child/children in their will, such nominated guardian is not considered a legal guardian until the court has granted to such person letters of guardianship. Although the parent’s choice for a guardian in their will is generally respected by the court, the court may still reject the parent’s choice in case it is not for the best interest of the child.
Sometimes, a biological parent and a legal guardian can co-exist at the same time. For example, there is only one biological parent left and he is out of the country, serving in the US military. In this case, the grandparents of the child or a close friend of the biological parent can file a petition for appointment of guardian while the biological parent is away. The court can grant guardianship for a limited period with limited powers.
In New York, there are three types of guardianship proceedings: Article 17 guardianship for a minor child under the Surrogate’s Court Procedures Act (SCPA); Article 17A guardianship for the mentally retarded or developmentally disabled (under SCPA); and Article 81 guardianship for the incapacitated adult under the Mental Hygiene Law. If the child is below 18 years of age, Article 17 guardianship petition is filed either in the Surrogate’s Court or Family Court, depending on whether property is involved. If the child is 18 years of age or older, either Article 17-A guardianship or Article 81 guardianship applies, depending on whether the adult is mentally retarded or has just become incapacitated. It is important to consult with a lawyer on the type of petition to be filed because an Article 17-A petition can be denied because an Article 81 guardianship proceeding is considered more appropriate.
A legal guardian can also be classified depending on the nature of guardianship granted by the court: guardian of the person; guardian of the property; guardian of the person and property; and guardian ad litem.
A biological parent (vs. a legal guardian) is never appointed by the court. In the case of a mother, the biological parent is the person who gave birth to the child. In the case of a father, New York recognizes the marital presumption of paternity where the spouse of the biological mother is considered the father of the child, if the child was born during the marriage. Thus, the biological father is either: (a) the husband of the biological mother (who does not deny paternity); or (b) a person not married to the biological mother who has acknowledged paternity.
The biological parent is the natural guardian of the child by default. The biological parent naturally exercises parental rights over the child upon the child’s birth. There is no need to file a petition to be appointed as legal guardian in order to exercise rights to decide for the well-being of the child. However, as previously mentioned, when the child receives more than $10,000 due to settlement, insurance proceeds, or inheritance, the biological parents need to file a petition with the Surrogate’s Court for appointment as guardian of the property of the child to ensure that the funds can be cared for until the child reaches legal age. The funds are jointly controlled by the Court and the guardian, and no money can be taken out without a court order.
When the biological parents divorce, issues relating to physical custody and legal custody arise, such as the question of the parent entitled to make major decisions about the child. Custody, however, is different from and should not be confused with legal guardianship. Custody almost always relates to the biological parents of the child.
If you are filing for guardianship or have received papers alleging you to be an incapacitated person with a third party claiming guardianship over you, we at the law offices of Albert Goodwin are here for you. We are located in New York, NY. You can call us at 212-233-1233 or send us an email at [email protected].