Whether you are married or divorced, one of the most important decisions you have to make in estate planning is the choice of a guardian for your minor children. Some clients who are divorced ask whether they still need to nominate a guardian if they are divorced. Won’t the other parent automatically get custody?
It is true that absent a compelling reason not to, a judge will grant custody of minor children to their other parent, however there are some situations where your nomination would be helpful to the court. Judges consider a number of factors in determining who should be a guardian such as:
1. The child’s preference 2. Which individual seeking custody will best meet the needs of the child.
3. Which proposed guardian will provide the greatest stability.
4. The moral character of the proposed guardian.
5. The relationship between the child and the proposed guardian.
6. The choice of the child’s mother or father.
Suppose you and your ex both pass away while the children are still minors? If you have nominated someone in your will or trust and your ex has not, your nomination will be the only document showing the courrt what your wishes were for your children.
Suppose you pass away and your ex is alive but is not able to care for the children, for example he or she is incapacitated, in prison, or unfit to raise them? It is difficult to prove that a parent is unfit but it can happen. Again if you have nominated a guardian, the court will give weight to that choice. So go ahead a name a person to care for your children, even if you are divorced.