§ 81 — Appointment of guardians by parent

New York § 81

• Jurisdiction: New York
• Law DOM: Domestic Relations
• Art. 6: Guardians

Text

§ 81. Appointment of guardians by parent. A married woman is a joint\nguardian of her children with her husband, with equal powers, rights and\nduties in regard to them. Upon the death of either father or mother, the\nsurviving parent, whether of full age or a minor, of a child likely to\nbe born, or of any living child under the age of eighteen years and\nunmarried, may, by deed or last will, duly executed, dispose of the\ncustody and tuition of such child during its minority or for any less\ntime, to any person or persons. Such surviving parent may appoint a\nguardian or guardians of the person and of the property of the infant\nand in making such appointment shall not be limited to the appointment\nof the same person or persons in both capacities. Either the father or\nmother may in the life-time of them both, by last will duly executed,\nappoint the other the guardian of the person and property of such child,\nduring its minority. Either the father or mother may in the life-time\nof them both by last will duly executed, and with the written consent of\nthe other duly acknowledged, appoint the other and a third person to be\nthe guardians of the person and property of such child during its\nminority, and in making such appointment shall not be limited to the\nappointment of the same person or persons in both capacities. Such\nconsent must have as part thereof a sworn statement that the consenting\nparent in so consenting, is motivated solely by the welfare of the child\nor children, the guardianship of whom is the subject of such consent,\nand that such consenting parent has not received and will not receive\nany consideration for such consent, and such consent may be revoked by\nsuch consenting parent at any time prior to the death of the other, by\nfiling in the office of the county clerk of the county in which said\nother then resides, a written revocation of such consent, subscribed and\nacknowledged by the person so revoking, with proof of service of a copy\nthereof on such other parent in the manner provided for service of a\nsummons. An appointment of a guardian of the person and property of an\ninfant made by duly executed last will of his father or mother shall be\nvalid and effective if at the time the will is admitted to probate the\nother parent shall have died or the surviving parent be an adjudicated\nincompetent. If both parents die under circumstances which render it\ndifficult or impossible to determine which of them died first and both\nof them left last wills appointing the same person as guardian, the\nappointment shall be valid and effective. If both parents die under\ncircumstances which render it difficult or impossible to determine which\nof them died first, leaving last wills appointing different persons as\nguardians, the surrogate's court shall determine which of the\nappointments will best serve the welfare of the child and issue letters\nof guardianship accordingly. If at any time during the minority of the\ninfant the surviving parent becomes competent to serve as guardian, he\nmay apply to the court which issued letters of guardianship to the\nguardian appointed by will for a decree revoking such letters and the\ncourt shall on such application make such order or decree as justice\nrequires. A person appointed guardian in pursuance of this section\nshall not exercise the power of authority thereof unless such will is\nadmitted to probate, or such deed executed and recorded as provided by\nSCPA 1710.\n