What guardianship covers
Guardian of the person — authority over the child’s care, custody, education, and medical decisions.
Guardian of the property — authority over assets belonging to the child, most often where a minor has inherited money or received a settlement. Courts supervise this closely and require accounting.
The two can be held by the same person or by different people.
How it differs from custody and adoption
| Guardianship | Custody | Adoption | |
|---|---|---|---|
| Parental rights | Not terminated | Not terminated | Permanent legal parentage changes |
| Typically sought by | A non-parent | A parent, or a qualifying non-parent | A prospective parent |
| Permanence | Can end when circumstances change | Modifiable | Permanent |
| Court | Surrogate’s or Family Court, depending on relief | Family or Supreme Court | Family or Surrogate’s Court |
The key point: guardianship is a functional arrangement rather than a permanent change in who a child’s parents are. That is often exactly what a family wants — authority to act now, without severing anything.
Where is it filed?
Guardianship of a minor can be sought in Surrogate’s Court under SCPA Article 17, or in Family Court. Which is appropriate depends on the circumstances. Family Court handles guardianship of the child’s person. Surrogate’s Court can appoint a guardian of the person, property, or both under SCPA Article 17. A property guardianship belongs in a court with authority over the child’s assets, rather than Family Court.
Standby guardianship
New York allows a parent to designate a guardian who takes authority on a specified triggering event — typically the parent’s incapacity, debilitation, or death.
This is worth knowing about for a parent facing serious illness or an uncertain future, because it lets them choose while they are able to, rather than leaving the question to be resolved in a crisis. Under SCPA §1726, a written designation requires two adult witnesses other than the proposed guardian. Authority can begin upon documented incapacity, death, or debilitation or administrative separation with the required consent. A guardian acting under a designation must petition within 60 days after authority begins to avoid its lapse. Court-appointed standby guardians have separate filing requirements.
What a court considers
The child’s best interests, the proposed guardian’s fitness and relationship to the child, the parents’ position and circumstances, and the child’s own wishes where they are old enough for those to carry weight. Notice must be given to the parents, and a parent’s objection makes the matter contested.
Frequently asked questions
What is guardianship of a minor?
A court order giving an adult legal authority over a child’s person, property, or both, where the parents cannot exercise that authority. Parental rights are not terminated.
How is guardianship different from adoption?
Adoption permanently terminates the parents’ rights and creates a new legal parent. Guardianship does neither — it grants authority while leaving parental rights intact, and can end when circumstances change.
Can a grandparent become guardian?
Yes. Grandparents are among the most common guardians, particularly where they are already caring for the child.
Do the parents have to agree?
No, but they must be given notice, and a parent’s objection makes the matter contested and considerably more involved.
Can guardianship be ended?
Yes, on application, where circumstances change — for example where a parent becomes able to resume care.
Related: Grandparent & Non-Parent Rights · Child Custody & Parenting Time · back to Family Law
Written by Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539 · Last reviewed October 6, 2026