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This entry was published on 2014-09-22
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SECTION 81
Appointment of guardians by parent
Domestic Relations (DOM) CHAPTER 14, ARTICLE 6
§ 81. Appointment of guardians by parent. A married woman is a joint
guardian of her children with her husband, with equal powers, rights and
duties in regard to them. Upon the death of either father or mother, the
surviving parent, whether of full age or a minor, of a child likely to
be born, or of any living child under the age of eighteen years and
unmarried, may, by deed or last will, duly executed, dispose of the
custody and tuition of such child during its minority or for any less
time, to any person or persons. Such surviving parent may appoint a
guardian or guardians of the person and of the property of the infant
and in making such appointment shall not be limited to the appointment
of the same person or persons in both capacities. Either the father or
mother may in the life-time of them both, by last will duly executed,
appoint the other the guardian of the person and property of such child,
during its minority. Either the father or mother may in the life-time
of them both by last will duly executed, and with the written consent of
the other duly acknowledged, appoint the other and a third person to be
the guardians of the person and property of such child during its
minority, and in making such appointment shall not be limited to the
appointment of the same person or persons in both capacities. Such
consent must have as part thereof a sworn statement that the consenting
parent in so consenting, is motivated solely by the welfare of the child
or children, the guardianship of whom is the subject of such consent,
and that such consenting parent has not received and will not receive
any consideration for such consent, and such consent may be revoked by
such consenting parent at any time prior to the death of the other, by
filing in the office of the county clerk of the county in which said
other then resides, a written revocation of such consent, subscribed and
acknowledged by the person so revoking, with proof of service of a copy
thereof on such other parent in the manner provided for service of a
summons. An appointment of a guardian of the person and property of an
infant made by duly executed last will of his father or mother shall be
valid and effective if at the time the will is admitted to probate the
other parent shall have died or the surviving parent be an adjudicated
incompetent. If both parents die under circumstances which render it
difficult or impossible to determine which of them died first and both
of them left last wills appointing the same person as guardian, the
appointment shall be valid and effective. If both parents die under
circumstances which render it difficult or impossible to determine which
of them died first, leaving last wills appointing different persons as
guardians, the surrogate's court shall determine which of the
appointments will best serve the welfare of the child and issue letters
of guardianship accordingly. If at any time during the minority of the
infant the surviving parent becomes competent to serve as guardian, he
may apply to the court which issued letters of guardianship to the
guardian appointed by will for a decree revoking such letters and the
court shall on such application make such order or decree as justice
requires. A person appointed guardian in pursuance of this section
shall not exercise the power of authority thereof unless such will is
admitted to probate, or such deed executed and recorded as provided by
SCPA 1710.