There are a lot of emotions involved in choosing a guardian since this designation assumes that you as a parent might not be around to care for your children. However, it is better to have a good option for a guardian designated and not have to have that person fill the role than for something to happen and not be prepared. That being said, it is important to pick the “right” person to fill this role.
There is a misconception that whoever you designate in your Last Will as a guardian for your minor child(ren) will automatically be appointed should something happen to you. However, that is not the case as guardianship always goes through the court and a judge could determine that your first choice of a guardian is not the best option for your child.
There is also a misconception that if you name a “godmother” or “godfather” that this person will serve as a guardian for your child; however, this is not a legal designation for a guardian. Your choice of a guardian needs to be made in a properly executed, valid Last Will & Testament or Pour Over Will.
Here are some factors to consider from a legal standpoint from a judge’s point of view:
BEST INTEREST OF YOUR CHILD
The court will make a decision of guardianship based on the “best interest” standards for your child. These are some factor’s that the court typically considers in guardianship cases:
- The child’s age and gender.
- Parent’s wishes. This is why it is important to leave a legal, valid designation in your Last Will & Testament or your Pour Over Will.
- Child’s Preference for a Guardian. As children get older, the court relies on their preference for who they would like to have as a guardian. Typically, if the child is fourteen years old or older, the court will ask the child who they prefer to serve as their guardian.
- Relationship Dynamics between Child and Potential Guardian and their Existing Family. The stronger the relationship between your child and the guardian, the better. Evidence that they can be a good caregiver to your child by either caring for your child in the past or showing to be a good caregiver to other parties is taken into account.
- Adjustment of Home, Community, and School for the Minor Child. Especially as a child gets older, it becomes more important to the court to not remove them from what is familiar. Removing a child from their school and friends and relocating them from everything that they are familiar with is not something that the court wants to do due to their social and emotional well-being.
- Physical & Mental Health of All Parties. This often comes up when young clients want to choose their parents to be guardians. Especially when your children are very young, the court wants to make sure that they do not put your child in a situation where they will have to be removed from their guardian. Our parents, depending on their health, may not always be a good long-term option. You can still request in your estate plan visitation times. If you are not choosing a parent or older person, the court will still consider evidence of mental, physical, and social health.
BIOLOGICAL PARENTS
Obviously, a biological parent has high priority for being placed as a guardian of a minor child. Often, we have single parents that do not want to list a biological parent as a guardian. Even if you do not list them as a guardian, the court could choose to place them as a guardian of the child, unless there is evidence that they are not fit to serve in this role. When the situation warrants it, I often advise clients to write a letter regarding their choice and reasoning for the guardian they have chosen or more specifically why they did not choose someone who might feel like an obvious choice, such as a biological parent. This is something that we would keep in your file should the occasion arise for a guardian to be appointed.
BACK-UPS & OTHER CONSIDERATIONS
The court does not have to choose your first option. It is very important to choose “back up” options, so that the court knows your intent. Something else to consider is not to name a couple as a guardian, but instead think of which person in the couple you would truly like to serve as a guardian. The reason for this is in case a couple gets divorced, you don’t want to put the child through a split custody situation.
We often have families that are worried about loved ones being "offended" that they were not chosen as a guardian. We mentioned above that we recommend writing a letter regarding your intent and reasoning. This can be written for the audience of friends or family members as well and is a good space for also thanking them for being a positive part of your child's life and that you hope that they continue to be in your child's life.
It is wise to discuss your options in choosing a guardian with your trusted estate planning attorney and to design a plan that best serves your child in case you are not able to care for your child. If you would like to discuss your family’s goals and needs for your children, we are always here to help walk you through this important decision.