Choosing a Guardian for Your Children
By Linda Sorg Ostovitz, Offit Kurman
As they say, expect the unexpected in all situations. In the context of family lives, this means having a plan for your children in case something happens to you. Many shy away from the topic of estate planning, but it is an important issue to address.
First, let’s talk about the importance of having a plan. Planning ahead allows parents to have some control over who would raise your children if you were unable. That control allows you to plan and talk with your chosen guardians. Should the need for a guardian arise, a smooth transition into the care of the individuals selected and prepared by you would help mitigate some of the emotional stress endured by all parties. Any selection of a guardian should consider issues such as:
- the guardian’s proximity to your child,
- the relationship between the guardian and your child,
- the responsibility of the guardian,
- the relationship between the guardian and the other parent,
- the age and health of the guardian, and
- the consistency of the guardian’s views with yours.
Now, on to the details…Choosing a guardian is a misnomer because in reality, the person selected to be the guardian of your children will be determined by a best interest standard. This means that any instructions you have left would be taken into consideration, but the court will decide if that choice is deemed to be in the best interest of your child. Any guardianship must be by way of a court order.
In the case of divorced parents, issues generally arise when there is an estate document. We start with the premise that each parent is the natural guardian of the children. Upon the death of one parent, the other parent is automatically the natural guardian. If someone other than the living parent is designated to be the child’s guardian, then a lawsuit will likely be filed and that designation may be tested. For example, if a spouse has a will that names his sibling as a guardian in the event of his death, versus the mother of the child, then it is likely that the mother will contest that designation. The designation or choice is really an indication of the parent’s intent. It will be considered along with the issues of what is in the best interest of the child. In the face of no contest or if both parents name the same guardian, then the parents’ designation is likely to stand.
Choosing a guardian for your child is a decision that must be made with care. This choice can be complicated if divorced parents do not agree on a guardian. The court will do its best to look after the needs of the child while taking the parents’ wishes into consideration.
An experienced divorce attorney will be able to help you navigate the intricacies of family law.
Published: March 2018 l Photo: Offit Kurman