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Friday, March 12, 2010

What if I don't want my ex to be my children's guardian?

One of the main elements of a Will is the appointment of a guardian for any of your children who are minors at the time you die. This is an area in which I am always asked a lot of questions about the competing rights of the parents and the child. Divorced people frequently want to know whether they can appoint someone other than their ex-husband or ex-wife to be the children's guardian.

The basic rule is that when a parent dies, the child's other biological parent has the right to custody (guardianship) of that child. You cannot overcome that parent's right by simply naming someone else in your Will.

This may be cause for concern for some parents. I know of cases where one parent has custody and the other parent has had no contact with the child for many years. There is no relationship between the child and the non-custodial parent. This is obviously cause for alarm, as no parent wants a child to live with virtual strangers.

Sometimes parents in the situation I've just described will tell me that they are pretty sure the non-custodial parent has shown no interest in the child but might do so if the estate was given to the child. In other words, that non-custodial parent might simply want the money.

There is no question that I only hear one side of the story in cases like this. I don't know whose "fault" it is that there is no contact between the child and the non-custodial parent. But it's not my job to decide custody issues. My concern is to build a Will that is likely to achieve the results my client wants.

Having already said that you can't override the other parent's right to custody, I can tell you that there are some things you can do in your Will. They are:

1. Name the person you want as guardian. Though the clause on its own won't achieve custodial rights, it does give the named person legal standing to begin a guardianship application in the court, if need be. In other words, the person you've named is no longer just any person off the street butting in; he or she has been given a higher status just by the fact that you have put their name in the document.

2. Make a brief statement in your Will explaining your choice. This is not meant to be a detailed litany of everything you think the other parent did wrong. This is simply a statement that the child hasn't seen the parent in years and there is no relationship. Remember that if a judge decides where the child is going to live, he or she will be looking at what is best for the child. If you are not going to be around to explain the situation, you need to have something in your Will that states that you had a good reason for naming someone other than the child's other parent.

3. Set up the trust clauses in your Will so that the other parent will never be in charge of the child's money, even if he or she becomes the guardian of the child. This should help to eliminate any parent who is, as described above, really only interested in the child's money.

4. Include a statement that you allow your executor and trustee to use your estate funds for the purpose of fighting a custody battle, should it come to that.

None of these things will guarantee the results you want, as you will be asking a court to take away a person's right to look after his or her own child. That's not going to be easy. But these steps will certainly improve your chances. Please remember to consult an experienced Wills lawyer when you have something as vital as child guardianship to worry about.

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