Does the Guardian for My Child Have to Be an American Citizen?
We get it. Estate planning can be uncomfortable, especially when talking about what will happen to your children if you die suddenly. The odds of both legal parents dying before a child turns 18 are low. But, the consequences of not naming a legal guardian in your will, or a separate document, can be significant. If you don't name a legal guardian, a court will have to choose someone to care for your child without your input.
In our globalized and mobile world, its not uncommon to have close friends and family members who live in a different country. Some of these individuals may be a good choice as a guardian for your minor child, but it raises legal questions. Can a non-U.S. citizen legally qualify for guardianship?
The short answer is no. Your child’s guardian doesn't necessarily have to be a U.S. citizen or a permanent resident. But, it is ultimately up to the court to approve a guardian.
When deciding whether to approve the individual you nominate for guardianship, the court looks at several factors, including the person's residency or citizenship status. However, a guardianship candidate who is not legally permitted to live in the U.S. can't automatically be dismissed by the court if they are otherwise a strong guardian candidate.
How Does Guardianship Work for Children
As a parent, you are legally responsible for supporting your child until they reach the age of 18. This means ensuring they receive basic needs like education, food, housing, clothing, and medical care. If you were to unexpectedly die or become incapacitated, someone would have to step in and fulfill your parental duties.
Normally, this would be your child’s other legal parent. But, this sometimes becomes impossible for various reasons. Perhaps the other parent has already passed away or is unable to care for themselves, let alone a child. There is also the possibility that you and your child’s other parent both die or suffer disability at the same time (or within a short period of time). What happens to your child then? Who will provide the care that you are no longer able to provide?
The adult who steps into your shoes in this situation is known as your child’s guardian. This could be a grandparent, sibling, other relative, or close friend you trust to fulfill this role. Ideally, it should be someone you trust to raise your child the way you want them to. The guardian needs to be willing, and able, to do the job.
Parents should name a guardian—or ideally, a list of several potential guardians—in their estate plan. Surprisingly, around 60% of Americans don't have a basic will, let alone a detailed estate plan. Without written instructions about who should care for your child in your place, the matter is left up to the state. The court could choose a guardian for your child. If nobody from your family is willing or available, your child might even end up in the foster care system.
Its important to note that, even if you have a will and name a guardian, it is still ultimately up to the court to decide if that person is qualified to serve in that role. In other words, the guardian named in your will is just a candidate. A family member could challenge your nomination in court and attempt to install an alternative. Also, the court may decide on its own that a guardian is unqualified.
Are Non-US Citizens Disqualified from Being a Minor's Guardian
When evaluating a guardian candidate, the court assesses whether the individual meets certain qualifications under state law. These qualifications typically include a person’s age, criminal record, lifestyle, physical and mental capabilities, and financial situation. These credentials can vary by state.
For example, in Ohio, potential guardians must disclose the following to the court:
If they have ever been convicted or charged with a crime involving theft, physical violence, sexual abuse, alcohol abuse, or substance abuse
The name, age, and address of the minor
The name, age, degree of kinship, and address of the minor's next of kin
The court will consider the best interests of the child when appointing a guardian. According to Ohio Revised Code, "The Court will appoint the nominee set forth in the power of attorney or designation, except for good cause shown or other disqualification of the nominee."
Nominating somebody who does not have a lawful US status, or who lives outside of the country, could raise the following questions with the court:
Does the appointment of the guardian mean taking the child outside of the country to live. If so, is that country a safe and suitable location for the child
What will the legal status of the child be in the new country and how will that impact them?
Does the child have ties with the proposed country? Do they speak the language? Have they visited before?
Can the guardian travel to America and remain here for the guardianship legal process? Are there any legal issues that prevent them from obtaining a visa for this purpose?
Could the guardian move permanently to the United States and gain lawful status to remain here and raise the child?
Context is everything in these cases. For example, if you were born and raised in the U.S., and most of the child’s family lives here, but you nominate a guardian that lives outside of the country, the court might decide that it would be in the best interest of the child to remain stateside. If, on the other hand, you were born and raised outside the U.S., and all your family lives outside the U.S., a guardian from your country of origin could make sense.
If you plan on choosing a non-US resident or noncitizen for your child’s guardian, you should provide detailed reasons for doing so. Make sure to include these reasons in your estate plan. On the surface, your choice might not make sense to a court. But, compelling arguments—like strong personal ties and a desire for your child to grow up with certain values—could help make your case.
Guardian of the Person vs. Guardian of the Estate
In Ohio, a guardian of the person is assigned physical custody of the child. They are in charge of protecting the child, making healthcare decisions for them, and in general providing for them. A guardian of the estate on the other hand, is tasked with managing the finances and property set aside for the child.
Sometimes, the same person serves as both the guardian of the person and a guardian of the estate. But now always. A guardian of the person may be a great caregiver but bad with finances. In that case, it would make sense to take a team approach to childcare, with someone else appointed to handle the child’s finances.
You might also be hesitant to unify the role if one guardian is not a US citizen and a trust has been set up for your child’s benefit. Having a foreign trustee could cause the trust to be classified as a foreign trust under US tax law. Being classified as a foreign trust triggers some problematic tax consequences, including potentially higher taxes, leaving less money for your child. Foreign trusts have additional reporting requirements as well.
Let Experienced Ohio Guardianship Lawyers Help You Make a Decision
As a parent, appointing a guardian is among the most important decisions you will ever make. Before making that decision, you should talk with an experienced estate planning attorney. At DuPont and Blumenstiel, we can help you understand your options.
If you decide to choose a non-US citizen as your child’s guardian, our attorneys can advise you about factors to consider. We can also help you identify at least one US-based alternate in case your first choice doesn't work out. We recommend reviewing your guardianship wishes, and your estate plan in general, every few years, especially after a major family event.
To start planning for your family's future now, please contact us at 614-389-9711.