This was originally a Christian tradition, with the godparent having a key role in the religious and moral upbringing of the child. Today, even in non-religious households, many families still appoint godparents (also sometimes referred to as ‘oddparents!’) to involve other adults in giving the child emotional and practical support throughout their lives.

But does this role have any legal implications?

In short, no it doesn’t. The godparents will clearly have a key interest in the child’s welfare but from a legal perspective, they do not have a direct stake.

There is often confusion around this issue with many parents wrongly believing that, should the worst happen and both parents die, the godparent will automatically assume responsibility for the child.

On the one hand, this misunderstanding does have a basis in common sense. After all, godparents are usually carefully selected and often close friends or siblings of the parents themselves. However, in the case of a parent (or parents) dying prematurely and leaving an underage child behind, the Scottish courts will decide who is best placed to look after their offspring.

Parents can, of course, influence this decision by suggesting a legal guardian in their will. This guardian can only be appointed by someone who currently has parental rights and responsibilities, and they do not have any legal responsibility while the parents are still alive.

In some circumstances, even when one parent remains alive, the guardian may choose to intervene if they believe that taking responsibility for the child is in the child’s best interest. 

For example, should the parents be divorced and a guardian is named in the deceased parent’s will, the guardian may approach the courts to explain why they believe the child would be better served by being under their guardianship, rather than living with the other parent. This may be the case for several reasons, such as if the other parent isn’t capable of looking after the child, if they live abroad, if the other parent’s circumstances are such that the child would be at risk, or if the other parent has largely been absent from the child’s life and therefore has little or no relationship with the minor.

Can I appoint a godparent as a guardian?

It is perfectly fine to appoint the same person as both godparent and guardian. Depending on how seriously you expect the role of godparent to be taken, there is quite a large gulf between the largely ad-hoc role of a godparent and the responsibilities that are inherent in legal guardianship. Make sure those on whom you bestow these crucial roles understand exactly what it is you, and the courts, might expect of them.

Can I change my child’s guardian?

Yes, but always make this clear by updating your will as should the worst happen, this is the document that the courts will turn to to understand your wishes. It’s natural for your relationships and those of children to develop over time and perhaps the guardian you choose for them at birth is no longer suitable, not as suitable as someone else, or may have passed away themselves. 

Can my children have different guardians?

Similar to the point above, different children will bond with different adults, so it is perfectly acceptable to appoint different legal guardians for different children, just in the same way that your children may all have different godparents. Just make sure that this is made very clear in your will.

It is important to note that in law, wills mainly deal with money and property - children are neither - however, any choice of guardian named in your will is binding after death and will certainly make your wishes clear should they this be challenged in court.  If a court dispute ensues then the welfare of the child or children will be the principal concern of the court.

Having to make provision for children in the event of your death is an almost unthinkable situation for any parent but none should rely on the informal appointment of a godparent.

Please note, that the focus of this blog post is around the guardianship of a child after the death of one or both parents, not guardians appointed should a parent be or become incapacitated.