This is a case being heard by the Queens County Surrogate’s Court. The subject of this case involves the guardianship of three children. The mother of the children passed away in October of 1975 and the father died on the 24th of May, 1976.
Before the father passed away, he and the children lived with his mother and his brother. After he passed away, the children continued to live with their paternal grandmother and uncle. The uncle was married in September of 1976 and since this time the children have lived with their uncle and his wife.
The will left by the father appointed his brother as the guardian of both the person and property of his children. Before the will was admitted for probate, a guardianship proceeding was started. The maternal grandmother offered a verified petition against the paternal grandmother. The paternal uncle was added as a party respondent in the matter.
The Judge overseeing the matter requested an investigation by the probation department and a report from an independent psychiatrist that was to be chosen by both of the parties.
A New York Probate Lawyer said not long after the petition was filed in the family court regarding custody, the will of the father was submitted for probate. The petition for appointment of the nominated testamentary guardian was filed in August of 1976. At this point the matter from the family court regarding custody was transferred to the Surrogate’s court for further proceedings.
Case Discussion and Decision
The right of a parent to be able to appoint a testamentary guardian is not a common law right, but is granted through statute. Under Domestic Relations Law sections 81 and 82 it is provided that upon the death of a mother or father the surviving parent of any child under the age of 21 may deed or last will the custody and tuition of the child to any person or persons that they see fit. This appointment of guardian by will shall be effective and valid when the will is admitted for probate.
In cases where guardianship is contested a hearing must be held. In this case the maternal grandparents are an interested party and the case must be heard in the Surrogate Court so an appropriate decision can be made.
A New York City Probate Lawyer said then the petition for custody was first filed in the family court the issue was whether the paternal grandmother was fit to take care of the children. However, when the will was admitted for probate the paternal uncle was named as the guardian. The petitioners challenged his qualifications as well.
When reviewing the facts of the case the court finds that the children would be well cared for by both the paternal uncle and the maternal grandparents. A Manhattan Probate Lawyer said however, the wishes of the father must be considered and for that reason custody is given to the paternal uncle. However, the court is ordering both parties to work out a visitation schedule so the children do not lose contact with their maternal side of the family.
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