What is a Godparent?
In the majority of religions, godparents are people selected by the parents to take a special interest in the spiritual and personal development of the child. In many cases, this role is recognized by the church or religious organization and recorded. In Christianity, the godparent is often appointed during baptism. However, as in the case of the modern secular role, the ecclesiastical role of godparents has largely declined over time and is not legislated for. Married or Shinto couples in Japan (and to some extent, single parents) also "select" individuals who serve as the spiritual guides to their children, but traditionally, the individuals are selected on the basis that they are wealthy and/or can help ensure the material security of the child. Unlike traditional Christian godparents , however, there is no public recognition or record of the appointment of a godparent, and the parents may also be required to "nurture" the parents’ own parents and extended family members. In Africa, the phenomenon of godparenthood is prevalent in most areas. In many cases, the godparent directs the child’s education and helps the child with practical tasks, with the godparent’s own children taking on a sibling role. The godparents’ role may be formal or informal. Although godparentship does not carry legal ramifications in many places, in Nigeria, for example, the godparent’s influence in the child’s life often supersedes the parents’.
Godparent Rights: A Legal Guide
The godparent/godchild relationship is steeped in rich religious and cultural traditions. However, in legal terms, it can be far less clear-cut. Whether or not a godparent holds any residual legal status over the child can depend on numerous factors, the most important being the laws of the jurisdiction in which the child is a resident.
In jurisdictions like the UK, a godparent has no legal responsibility for the child. Automatically this means the child’s natural or adoptive parents maintain sole custody and become legal guardians. Through the courts, however, the status can be modified — for example, if parental rights and responsibilities are assigned to the godparent or another individual. In some UK courts, the matter of whether or not an individual is allowed to seek guardianship of a child may be fact-based and sensitive to the particular circumstances surrounding that claim.
States in the United States, on the other hand, offer some flexibility in the matter of parental rights. California law allows for an interested party — such as a close relative or close family friend — to petition the court for a "de facto" parent designation. As with UK law, the designation does not grant any legal custodial status to the individual — it merely gives them the opportunity to seek joint legal and/or physical custody of the child. For the interested party to be designated as a de facto parent, they must have been less than 2 years old when they began living with the child full-time. The individual must also have formed a significant bond with the child, and perform the role of a parent.
Of course, these legal definitions on a basic level outline the formalities that enable the court to say whether or not a certain third-party individual has any legal rights to the child. Whether the godparent plays a role in the child’s life varies considerably from case to case.
Godparents and Child Custody Arrangements
Although a godparent does not have an enforceable right to custody or visitation, in some cases, courts have ruled in favor of granting custodial and/or visitation rights when a parent contests a would-be godparent for such rights. For example, if a biological parent were to die, it is possible then for a godparent to petition for custody and a judge to award custody if he or she deems this to be in the best interest of the child. A godparent could also petition for visitation rights if the biological parents were to divorce and the child be placed with one of the parents.
In such situations, a visitation order may be awarded to a godparent if the biological parent maintains a relationship with the child, which would be preserved or enhanced by a visitation arrangement with the godparent. That is, a biological parent who continues to see the child will have an easier time in allowing the child to visit with their godparent than a parent who no longer wants a relationship with the child (or if the child does not want to see the parent or simply does not know who the parent is). If the biological parent shares custody with a godparent, then a visitation arrangement between the child and a godparent may exist during certain times or at specific locations. In such circumstances, a visitation arrangement would most likely involve physical contact between godparent and child rather than visitation during the child’s normal activities, which is the preference in a typical visitation arrangement between biological parent and child.
If grandparents are allowed to petition the court for visitation under certain circumstances, so too are godparents. Although a godparent is not a biological parent, he or she may request to establish a relationship with a child after the parents’ divorce or separation if the court determines that doing so is in the child’s best interests.
Unlike a biological parent, a godparent does not have sufficient standing to petition the court for visitation if a parent has not denied visitation with the child, or if there is no reasonable likelihood that the parents would permit such visitation. In other words, while a biological parent must allow visitation in order for a godparent to petition for visitation, a godparent may not petition the court on behalf of a child who has no contact with the parents.
Securing Legal Rights as a Godparent
In addition to naming godparents in informal ceremonies, they can also be named in a variety of legal documents such as wills, guardianship agreements and stipulations, and powers of attorney, depending on the nature and particular significance to the parents of each family. These documents can provide a legally binding framework for the role that Godparents play in the lives of their Godchildren.
For parents who foresee a need for Godparents to have specific authority over matters related to their children, a number of options are available.
Wills- A Last Will and Testament can give a Godparent the power to make decisions about a child in the event that the child’s own parent dies or becomes incapacitated. While most wills do not explicitly name godparents, a Christian Mayment can include a provision to appoint Godparents or designates Godparents as guardians of a child.
Guardianship Agreements- Parents can use a Guardianship Agreement to designate what will happen to their children in the event of their death. These contracts are often part of a Will, but can also stand alone. A Guardianship Agreement should identify exactly who will care for the child and specify how that individual will interact with other adults, including the children’s grandparents or other relatives. Under New York law, Guardianship Agreements are legally binding and enforceable.
Power of Attorney- Parent may grant to Godparents the legal right to make decisions about a child’s affairs by signing a Non-Power of Attorney. This document gives the Godparent the authority to make decisions for the child in all matters except consenting to adoption or marriage of the minor child. A Non-Power of Attorney is different from an Adoptive Power of Attorney, which gives a Godparent additional rights regarding their Godchild’s financial and educational well-being.
These documents can provide a legally authorized and enforceable framework in which to define the rights of the Godparents, and clarify the role they will play in the upbringing of their Godchildren.
Myths and Misunderstandings of Godparent Rights
Many people are unaware that there are significant misconceptions about the rights of Godparents; these misconceptions can lead to an unnecessary struggle during an already emotional time. It is often presumed that the parents of a child may name anyone as a Godparent regardless of their other personal circumstances, both because the appointment of Godparents is a private decision of the parents and because many assume that the appointment is an informal one. The appointment of a Godparent is not an informal process, however.
Some assume that because a parent has named a person as a Godparent, there are certain legal presumptions regarding the role of that person in the life of the child. For example, some assume that the appointment of a Godparent provides that that person may not impose medical treatment of a child, and that the parents cannot revoke the authority of a Godparent to so act, without the consent of the Godparent, at a point when the parents can no longer protect the child. Under certain circumstances, such assumptions are false. A clear understanding of the role of a Godparent, and the circumstances under which their authority extends to the medical treatment of a child, is essential to avoid unnecessary strife at a time of grief.
Yet another misconception is that the appointment of a Godparent, without more, means that the Godparent has first rights to custody of the child should any of the parents die. This is similarly false. Although there may be significant seeming parallels between the role of a Godparent and the role of a Guardian , they are separate roles with separate consequences.
In New York, there is no legal presumption that a person at the time of death has sufficient mental lift home with placing a will provision to appoint a Guardian of a child who will survive the parent. There is no requirement for a Guardian to be named in accordance with a will. Nor does the failure to name a Guardian in a Last Will and Testament, in any way limit the right of a person to later petition a Surrogate’s Court for the appointment of a Guardian.
Guardian’s are formally appointed by the Surrogate’s Court, and have significant responsibilities. They are supervised by the Surrogate’s Court and their actions are reviewed regularly. When a Guardian is appointed by the Surrogate’s Court, using the following formula to consider best serves the welfare of the child:
- (1) the ability of the proposed Guardian to meet the needs of the child,
- (2) the expressed desires of the child, unless the Court determines that such desires are not in the child’s best interest,
- (3) the ability of the proposed Guardian to provide a stable family unit,
- (4) the relationship of the child to the proposed Guardian, and
- (5) the character and standing of the proposed Guardian in the community.
Given the breadth of consideration by which the Court appoints a Guardian, and the level of scrutiny involved, it is entirely incorrect to assume that a Godparent will have first rights to the Guardianship of a child if the child’s parent passes away.
Prepping to Be a Godparent
Consider your spiritual beliefs and commitment to the parents. While many parents choose a godparent who shares their religious convictions, this is not a prerequisite for accepting the role of godparent. Discuss your intentions, if applicable, during a meeting with the parents. A godparent’s role involves more than just attending the ceremony. It is a wonderful opportunity to be part of a special child’s life. It is also a time to offer support and guidance as the child grows. All parents want the best for their children, and they do not enter into this commitment lightly. Be clear about your own intentions and boundaries with the family members from the beginning. What are your hopes and obligations? Find an opportunity to discuss this in person with the child’s parents before finalizing your commitment. Honor your agreement. This is a serious undertaking and should be discussed among the parents prior to selecting a godparent. Be devoted to being a good example to the child. While the godparent rarely has much contact with the child, there are opportunities to be an important mentor. Moral commitments to your faith, your family and your career all are important aspects of being a godparent. Pay attention to the child’s up-bringing. It is important that you are active in the child’s life. If possible, pay attention to the child’s activities, and provide assistance when needed. Be an example of good behavior by being the type of person that you want your godchild to be, such as attending church and helping others in the community. Communicate with the parents on important milestones and transitions.
Legal Considerations When Selecting Godparents
When it comes to choosing a godparent, an intended parent must first keep in mind that a godparent is not a legal guardian and therefore, has no legal rights of custody or control over a child. When considering the selection of a godparent, a parent may want to look for a person might have individual skills that would benefit a child should parent(s) pass away or become incapacitated due to illness, accident, etc.
When there are multiple people named as godparent(s), a parent may want to think about what would happen if both parents pass away, for example. Would the godparent(s) agree to be responsible for the child’s medical care, education and general day to day decisions, just as the biological parent(s) would? There are many issues that should be seriously considered such as are there alternative guardians if the primary godparent can no longer serve in that role? What if the primary godparent and parent(s) do not have the same values, religious beliefs , etc.? What if a sibling of the primary godparent is the person intending on adopting the child in the event that something happens to both parents? A conflict of interest could arise.
Parents may want to consider creating a written document with other prospective godparent(s) outlining their expectations and wishes if they were to pass away. In most jurisdictions, a godparent designation does not create a legal parent-child relationship or establish any formal decision making authority akin to that of a legal guardian. However, a parent can be specific and set forth their wishes with regard to decisions, religious upbringing and the child’s residence in an advanced directive. These documents for the most part are important in the case of multiple persons being designated as a potential godparent in the event of a death of both parent(s). Without such documents, a court might need to be involved to determine the appropriate person to care for the child.